The PEOPLE, Plaintiff and Respondent, v. Norman Lee STEEG, Defendant and Appellant.
Defendant Norman Lee Steeg appeals after a jury convicted him of first degree murder (Pen.Code, §§ 187, 189)1 and robbery (§ 211) with a felony-murder special circumstance finding (§ 190.2, subd. (a)(17)(i)). Allegations that Steeg was armed (§ 12022, subd. (a)) and used (§ 12022.5) a firearm were found to be true. The jury also found Steeg guilty of the theft of a firearm. (§ 487, subd. (3).) Following the penalty phase hearing, the jury fixed Steeg's punishment at life imprisonment without the possibility of parole.
FACTUAL AND PROCEDURAL BACKGROUND
On the night of September 29, 1981, defendant Steeg met Michael Williams and Kevin Finckel, with whom he was previously acquainted, on the boardwalk in Mission Beach. Earlier in the day, Steeg had stolen a loaded .38 calibre revolver and some Rolling Stones concert tickets from the residence of his girlfriend's mother. He was in Mission Beach attempting to sell the stolen property when he encountered Williams and Finckel.
After several hours of drinking and socializing, the trio encountered Gregory Lock, an off-duty sailor who was having trouble starting his car, a white 1978 Oldsmobile Starfire hatchback. They offered their help to Lock and when the car started, they asked Lock if he could give them a ride to North Park. Lock agreed, and after leaving Mission Beach, he drove south on Interstate 5. Williams sat in the front passenger seat next to Lock. Steeg and Finckel sat in the back seat, with Steeg seated directly behind Lock.
Shortly after they got on the freeway, Steeg pulled out the gun and placed it to Lock's neck. As Lock continued to drive south, Williams removed Lock's wallet from his pocket, but returned to Lock his military identification card. During the drive, Williams and Steeg repeatedly disagreed over where they were going and who was giving orders to Lock regarding their destination. Steeg indicated he wanted to stop the car and “let [Lock] out here” but Williams instructed Lock to “keep going.”
When they arrived in National City, it was agreed Steeg would drive the car. Steeg ordered Lock off the freeway and they drove to an adjacent warehouse area. According to Finckel, Williams “seemed kind of edgy, he was getting on everybody's case, you know, and telling them to shut up, stuff like that.” Steeg ordered Lock out of the car. Williams also got out and came around to the driver's side. Steeg then handed the gun to Williams so he could climb out of the back seat. Williams ordered Lock to lean up against a telephone pole, approximately five to ten feet from the car. As Steeg climbed into the driver's seat, Williams suddenly shot Lock twice with the revolver. As Lock started to run away, Williams shot him a third time, causing him to fall. Williams then fired two more shots.
Finckel testified that when Steeg handed the gun to Williams, Finckel suspected Williams would shoot Lock “from past experience.” He also testified, however, that when Williams shot Lock, Steeg turned to Finckel and said “something like ‘I didn't know he was going to do that.’ ” Steeg's testimony in his own defense was consistent with Finckel's trial testimony. According to Steeg, he had no idea Williams would shoot Lock. He claimed he had his back to Williams and Lock when he heard the first shots being fired and turned to Williams yelling, “No! Why in the hell did you do that?” Steeg testified that when Williams got back in the car, he told Steeg and Finckel that “if we said anything, that he would shoot and kill me and Kevin. That us three were not going nowhere until he got rid of the evidence.”
Finckel's testimony at trial was impeached with prior inconsistent statements he made to National City police officers shortly after his arrest. He told the officers that when Williams shot Lock, Steeg exclaimed, “Oh, shit, I knew he was going to do it.” In the National City interview, Finckel also stated that Steeg chided Williams for firing the gun five times, because “we could have used the rest of the shots.”
After spending the night with a friend, where Williams burned Lock's wallet and its contents, the trio drove to Riverside in Lock's car, arriving late in the afternoon. Apparently while Steeg was asleep, Williams and Finckel burglarized the home of David Beardsley an acquaintance of Finckel's. The items taken included two cameras, a coin collection, drugs and a .38 caliber pistol. Finckel testified that all three had previously discussed the possibility of burglarizing Beardsley's residence to obtain items they could sell, and all had agreed it was a good idea. Steeg testified that he though Finckel was merely going to Beardsley's apartment to retrieve some things he had left there and had no idea he and Williams intended to steal anything until they returned to the car with the various stolen items.
From Riverside, the trio drove to Long Beach where they met a prior acquaintance of Williams', Shane Magee. Magee agreed to help them sell some of the items stolen from Beardsley's apartment and suggested they all drive to Las Vegas where Magee had various contacts. Magee testified that at some point before they left Long Beach, Williams told him that “they shot somebody, and that they had the car for three days so far and they wanted to get rid of it, and if I wanted to come with them it was up to me.” Finckel testified he never remembered Williams telling Magee about anyone being shot, but he did remember Magee being told that the car was stolen. In Las Vegas, Magee helped the trio sell some of the stolen property. With the proceeds, Steeg rented a room for the group at the Villa Inn motel. Magee introduced the trio to a friend of his, Dana Cowen, who purchased some of the stolen property. On Friday evening, October 2, all five went drinking at the Golden Nugget Casino. While at the Golden Nugget, Cowen got in an argument with a drunk at the bar. Steeg then sent Finckel back to the motel room to get one of the guns. When Finckel returned and gave Steeg the gun, Magee told him, “This is Las Vegas, and we can't, you know,—we can't be carying [sic] guns around like that.” Steeg replied, “Yeah, but we are crazy. How do you think we got the car? We killed a guy so they wouldn't find out.” Magee also testified that throughout the entire time in Las Vegas, it was his opinion that Steeg was the dominant person among the three.
At one point, Finckel remained in the motel while Williams, Steeg, and Magee attempted to sell more of the stolen property. Magee and Williams got into a disagreement over the proceeds of a sale. Williams warned Magee that “if he would kill a guy for a car, that he would kill anybody for a couple of hundred dollars.” Following the disagreement, Williams and Steeg returned to the motel, gathered up several items including the stolen guns, and left again. Williams told Finckel “he was going to go and pull a robbery.”
Magee did not return with Williams and Steeg to the motel. Instead, now fearing for his own safety, he decided to call the police. Apparently in an attempt to prevent their departure until the police could arrive, Magee flattened a tire on the stolen car. He then called the police from a pay phone booth at the motel.
Magee's phone call to the police dispatcher was tape recorded and transcribed. He told the dispatcher:
“I ain't going to give up my name but I think there is in the Vista Motel in room 28, I heard last night through the wall that there was three guys living there and they're from San Diego and they're driving a stolen car and there was suppose to be something about a murder.”
Magee went on to describe the car as white, “[i]ts like a Vega, you know, it slants in the back and that.” He also said three guys were trying to “sell some guns.” Magee explained that he could see two of the guys changing a tire on their car, describing one as having long brown hair, a bushy beard, and wearing a blue jean jacket, and the second as having blond hair and wearing a blue t-shirt with sleeves cut off. He stated that both men were wearing blue jeans and red bandannas. Magee did not describe the third man, who he said remained in room 28.
Four patrol officers (in two cars) and a homicide detective were immediately dispatched to the Vista Motel, which they discovered had no room 28. They communicated this information to the dispatcher who, coincidentally, had just received another phone call from Magee. Magee called back to report that the two men had finished fixing the flat tire and had driven off. In his second phone call, Magee provided the additional information that the stolen white hatchback had Florida license plates. It was at that point the dispatcher received the call from the officers indicating there was no room 28 at the Vista Motel. Upon being questioned, Magee checked the sign outside the phone booth and discovered he was calling from the Villa Inn.
On arrival at the Villa Inn, police entered room 28 and questioned Kevin Finckel. Finckel's statements corroborated much of what Magee had told the dispatcher. Shortly thereafter, officers outside the motel observed a small white hatchback with Florida license plates returning to the motel parking lot. The car was stopped and Steeg and Williams were ordered to get out. After they were patted down and handcuffed, a license plate check revealed that the car had been reported stolen from a homicide victim in National City.
Finckel consented to a search of room 28 from which certain items were recovered. Later, a warrant was obtained to search the car and to conduct a second search of room 28. These searches yielded additional items.
Williams and Steeg were tried separately. Finckel plead guilty to second degree murder and testified as a witness for the People against both Williams and Steeg. Williams was tried first and was convicted of robbery and first degree murder while engaged in the robbery. The jury imposed a sentence of death and his appeal is currently pending before the California Supreme Court. Before a different jury Steeg, like Williams was found guilty of robbery and first degree murder while engaged in the robbery, but the jury imposed a sentence of life imprisonment without the possibility of parole.
Steeg's major contentions are addressed to the court's ruling on his motion to suppress evidence pursuant to section 1538.5. He challenges both the substance of the ruling and the procedure by which it was arrived at. He also makes separate contentions of instructional error.
An understanding of Steeg's search-and-seizure contentions requires that we first describe the manner in which the section 1538.5 hearing was conducted and then review the evidence presented at the hearing. We then address each of Steeg's procedural and substantive arguments.
Williams filed a motion pursuant to section 1538.5, joined in by Steeg, seeking to suppress the fruits of 13 alleged searches and seizures which occurred in Las Vegas. Because a majority of these searches and seizures were accomplished without a warrant, defendants relied on Wilder v. Superior Court (1979) 92 Cal.App.3d 90, 96, 154 Cal.Rptr. 494 for the proposition that once a defendant demonstrates that a seizure was without a warrant, the burden shifts to the People to justify the warrantless action. Since they did not know on what basis the People would seek to justify the warrantless searches and seizures, defendants suggested the People proffer their justification to which the defense would then reply. (Wilder, supra, 92 Cal.App.3d at pp. 96–97, 154 Cal.Rptr. 494.)
The People opposed defendants' motion and their suggested procedure, relying on the requirement in California Rules of Court, former rule 203(a) (now renumbered 313(a)) that a notice of motion be supported by a memorandum of points and authorities. They argued that defendants had “failed to show by argument or authority that they have a right to the relief they seek” and that “the court has no obligation to search for authorities in support of the defense motion.” “The defense,” according to the prosecutor, “has done nothing more than say, ‘I object.’ ” Citing People v. Manning (1973) 33 Cal.App.3d 586, 596–597, 109 Cal.Rptr. 531, the People dismissed the applicability of Wilder in the following terms:
“The defense fails to provide any rational basis for this court to accept the implicit argument that Wilder has overruled both the California Rules of Court, the Evidence Code, and the long established rules of court enacted by the San Diego Superior Court․ The People contend that Wilder does not control what happens in the Superior Court of the County of San Diego, ․”
The district attorney then added the following comment:
“The People recognize an increasing number of members of the criminal defense bar, in their handling of cases, are being declared incompetent by our appellate courts. In view of the lack of direction given this court by the defense in the pleadings, and in aid of defense counsel avoiding subsequent charges of incompetency, the People provide the following outline of areas of argument to be urged by the prosecution so that the defense may be acquainted with these propositions and be prepared to give effective argument.”
What followed was a hornbook checklist of 27 potentially applicable justifications for searches and/or seizures (23 of which were checked) which included such helpful suggestions as “THE ITEM SEIZED WAS EVIDENCE OF A CRIME,” “THERE WAS NO EXPECTATION OF PRIVACY,” “THERE WAS PROBABLE CAUSE TO ARREST” and “Other” with no additional explanation.
In the first hearing on the motion, Judge Low concluded that the
“․ Wilder procedure is very, very unsatisfactory, you have to point up what the issues are, and as far as I am concerned, the burden is on you to at least point up what the Court is looking for and so I'll rule that you have the burden.”
Judge Low then granted defendants a continuance of the hearing to allow time for the preparation of more detailed points and authorities, which were filed shortly thereafter.
Meanwhile, defendants also filed a motion for a certificate to compel the attendance of 10 Nevada witnesses at the 1538.5 hearing pursuant to the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases. (See §§ 1334–1334.6; Nev.Rev.Stat., §§ 174.395–174.445.) The superior court ordered that the certificate be issued but when enforcement was sought in Nevada, the Eighth Judicial District Court ordered attendance of only 5 of the 10 witnesses. The Nevada judge agreed with the Clark County District Attorney that the testimony of the additional 5 witnesses would be cumulative and unnecessary. Following the denial of their petition for rehearing, defendants filed a petition for writ of mandate with the Nevada Supreme Court challenging the ruling of the Eighth Judicial District Court.
The date scheduled for the continued 1538.5 hearing occurred after the ruling of the Nevada trial court but before defendants' mandate petition had been filed. Judge Reed denied defendants' request for a continuance of the hearing until the Nevada Supreme Court could rule on defendants' petition.
As a result of Judge Low's ruling on the burden of proof issue, the People called no witnesses at the suppression hearing. Defendants called six police officers including three Las Vegas officers who were present during the entry of Villa Inn room 28, the questioning of Finckel and the arrests of Williams and Steeg. In addition, Finckel and Steeg were also called to testify.
Detective Joseph Mc Guckin and Officers Robert De Hoedt and John Schultz of the Las Vegas Metropolitan Police Department testified as to their receipt of the dispatch regarding Magee's telephone call and the events which followed it.2 All three basically recalled that they received a dispatch indicating that an anonymous individual had overheard a conversation among three individuals regarding a “murder” (Mc Guckin and Schultz) or “shooting” (De Hoedt) which had occurred in California. The individuals were in possession of at least one gun and at least one of them was located in room 28 of the Vista Motel, later determined to be the Villa Inn. Not surprisingly, the further details of their testimony regarding the dispatch differed somewhat, likely owing to the nature of the questions asked. For instance, De Hoedt testified that two of the suspects were described as “bearded; very scraggly in appearance; had red bandannas. Both of them were white males.” Both Mc Guckin and Schultz indicated that the dispatch included a description of at least some of the suspects but were not asked for details. Similarly, while Schultz specified that the dispatch had mentioned that the car was stolen, De Hoedt and Mc Guckin did not volunteer the information and were never asked whether they were told the vehicle was stolen. Thus, the evidence at the 1538.5 hearing was uncontradicted that on arrival at the Villa Inn or shortly thereafter—and in any event before entering room 28 3 —the investigating officers had a general description of at least two of the suspects, a fairly specific description of the car, and information indicating that the car was stolen and that the suspects were armed.
On arrival at the Villa Inn, Mc Guckin and Schultz went to the manager's office and determined that room 28 was registered to Norman Steeg. A California address was listed on the registration card. At about this time, one of the other officers approached the phone booth Magee was using and asked him whether he was talking to a policewoman. Not wanting to get involved, Magee said “no” but the transcript of his phone call with the dispatcher suggests the officers were informed that Magee was the anonymous informant.4
All five officers then proceeded to room 28. Some if not all approached the door with guns drawn. De Hoedt knocked, “announced that there were police officers present and for the door to be opened.” When Kevin Finckel opened the door, the officers immediately entered the room. While Schultz conducted a pat down search of Finckel for weapons, other officers quickly searched the motel room for additional suspects and the immediate area around Finckel for weapons. Some ammunition was discovered in a dresser drawer but none of the three officers could identify who opened it.
Schultz apparently advised Finckel of his Miranda rights 5 following which Mc Guckin briefly questioned him. Mc Guckin described the outlines of the conversation:
“[W]e had a certain amount of information that we got from the anonymous phone caller. I was looking for some kind of a corroboration from Mr. Finckel as to corroborating this informant, and also, trying to determine in my own mind was he or was he not part of this thing.”
Mc Guckin asked Finckel for a general description of the other two men and of the car they were driving. Finckel was not asked for information regarding the reported killing in California but was simply informed that the other two men were suspected of a California murder. Finckel told Mc Guckin that the car his companions were driving was stolen and that they had left about five minutes earlier. De Hoedt remembered Finckel also saying that there was one gun in the glove compartment and one gun underneath the seat.
When Mc Guckin finished the questioning, De Hoedt and Burris left the motel room and set up a surveillence of the parking lot to await the return of the white hatchback with Florida license plates. While in their patrol car shortly thereafter, they observed a white car matching the previous description driving down an alley just behind the Villa Inn. The occupants also matched the previous descriptions given by the dispatcher and confirmed by Finckel.
The officers stopped the white car and reported the stop and the vehicle's license number to the dispatcher. With guns drawn they ordered the two occupants, who turned out to be Steeg and Williams, out of the car and patted them down for weapons. A medium-sized stiletto-type throwing knife was found on Steeg. Steeg and Williams were then handcuffed and advised of their Miranda rights.
At about this time, De Hoedt observed on the floorboard of the vehicle a brown leather case which he recognized as a gun case. He picked it up and felt what appeared to be a weapon inside. He then unzipped the case, confirmed there was a revolver inside, and laid the case back down on the driver's seat.6 Before De Hoedt and Burris placed Steeg and Williams in the back of the patrol car, they received word from the radio dispatcher that a check with the National Crime Information Center (NCIC) revealed the white hatchback had been reported stolen from a homicide victim in National City. Somewhere between 5 and 15 minutes elapsed between the time the car was stopped and the time De Hoedt and Burris received the NCIC dispatch confirming the car was stolen.
While De Hoedt and Burris were stopping the white car, Mc Guckin took Finckel from the motel room and placed him in the front seat of his car. He was not handcuffed and Mc Guckin testified he was not under arrest at the time. Although no one told him he was under arrest, Finckel testified he did not feel free to leave from the time the officers entered the motel room.
While seated in Mc Guckin's car, Finckel consented to a search of the motel room and signed a consent form provided by Mc Guckin. Finckel did not read the form himself because he is dyslexic, but Mc Guckin read the form aloud and explained it to him. Finckel testified he voluntarily signed the form and consented to the search because he thought cooperating with the police would be a good idea. The resulting search of the room yielded a brown plastic bag containing, among other things, four .38 cartridges.
Steeg, Williams and Finckel were transported to the police station where Finckel made additional statements to National City police officers who had now arrived to take charge of the investigation. In those statements, Finckel falsely claimed he had been hitchhiking and was picked up by Steeg and Williams before they left San Diego. He provided police with details of the shooting of Gregory Lock, which Finckel indicated had been related to him during the drive to Las Vegas. These statements were included in a application for a warrant to search Lock's car and to re-search room 28 at the Villa Inn. The affidavit in support of the warrant also recounted Magee's anonymous phone call and the circumstances surrounding the stop of Lock's stolen car and the arrest of Steeg and Williams. The search of the car recovered among other things the .38 caliber revolver stolen from the home of David Beardsley.
Based on the evidence presented at the hearing, defendants argued that the initial warrantless entry of room 28 was unlawful and that all subsequent seizures made by police were the product of the initial unlawful entry. In particular, defendants focused on the statements of Kevin Finckel, contending that all of his statements including his trial testimony were tainted and should be suppressed.
Judge Reed denied the motion to suppress.7 She found that the officers acted reasonably in attempting to investigate the anonymous phone call by approaching room 28, that they knocked and identified themselves as police officers, and that it was proper they had their guns drawn due to a reasonable fear for their safety based on the phone tip indicating the possible presence of armed homicide suspects. She further found that the officers' conduct with respect to Kevin Finckel while in room 28 amounted to a detention, reasonable under the circumstances, and that Finckel freely and voluntarily spoke to officers and consented to the search of the motel room.
As to the stop of the car, Judge Reed similarly concluded that the officers' conduct in approaching the vehicle with guns drawn was reasonable. She also validated Officer De Hoedt's plain view seizure of the gun case and found that it was not unreasonable for him to have opened the case to confirm that a gun was inside.
At the conclusion of her oral ruling, Judge Reed was informed by Williams' counsel that defendants' petition for writ of mandate to the Nevada Supreme Court regarding the additional Las Vegas witnesses had not yet been ruled upon. Counsel was concerned as to what would happen if the petition was later granted and the additional witnesses provided testimony favorable to the defendants. Judge Reed accepted counsel's suggestion that the hearing could be reopened for additional testimony if that eventuality occurred:
“To the extent that your petition before the Nevada Supreme Court might alter the testimony or the evidence that you would have presented at the 1538.5 hearing had your writ in Nevada been completed, this matter, I would find, could be reopened for that limited purpose.”
The Nevada Supreme Court did indeed grant defendants' petition for a writ of mandate to compel the attendance of additional witnesses. The reopened section 1538.5 hearing was held on June 15, 1983, some eight months following Judge Reed's original ruling. In the interim, Steeg had been tried and convicted but not yet sentenced.
Officer De Hoedt's partner, Timothy Burris and Officer Schultz' partner, Michael Karstedt, testified at the reopened hearing. Their testimony largely tracked the previous testimony of De Hoedt, Schultz and Mc Guckin but defendants identified and argued what they perceived to be significant discrepancies or clarifications:
(1) Karstedt testified that in addition to the registration card, Mc Guckin and Schultz also obtained the room key from the manager's office.
(2) Both Burris and Karstedt confirmed that all officers had their weapons drawn when they entered room 28.
(3) Karstedt remembered that Schultz had advised Finckel of his Miranda rights after the patdown search but did not recall whether he was asked if he wanted to waive his rights and talk to the officers.
(4) Karstedt testified that Finckel was handcuffed immediately after he was searched.
(5) Burris and Karstedt stated that Burris had opened the dresser drawer in which the ammunition was found.
(6) Burris explained that he considered Williams and Steeg under arrest as soon as they were handcuffed.
Based on this testimony, defendants argued that: (1) the officers uninvited entry into room 28 was without both probable cause and exigent circumstances; (2) Kevin Finckel was arrested in room 28 without probable cause; (3) Williams and Steeg were arrested after the car stop without probable cause; and (4) all Finckel's statements and testimony as well as the evidence seized from the motel room and car were the fruits of the illegal police conduct. After taking the matter under submission for two weeks, Judge Reed concluded that the additional testimony did nothing to change her previous ruling and, accordingly, again denied defendants' motion to suppress. She also denied a request for findings.
On appeal, Steeg again argues that the testimony at the initial 1538.5 hearing established grounds for the suppression of all evidence challenged by defendants based principally on the illegality of the police entry into room 28. He also makes two procedural arguments, challenging Judge Low's ruling that defendants bore the burden of establishing the illegality of the warrantless searches and seizures and contending that Judge Reed erred in failing to continue the 1538.5 hearing until the Nevada Supreme Court acted on defendants' petition for writ of mandate. As to the second point, he further suggests that the court was without jurisdiction to reopen the suppression hearing following Steeg's conviction.
The issue of the substantive validity of the police conduct in the case appears to us to be framed by two specific events which occurred at the Villa Inn and, perhaps more interestingly, by the parties' respective analyses of those two events. The first key event is the police entry into room 28 without Finckel's consent and without a warrant. This entry made possible the first seizure—of Finckel—which Steeg alleges tainted all subsequent police action. By characterizing the entry and seizure of Finckel as a “detention,” the People effectively concede the Las Vegas officers did not possess probable cause to arrest anyone at the time they approached the door to room 28. This concession, in our view, is well-advised.
The second key event is the receipt by Officers De Hoedt and Burris of the NCIC information indicating that the car driven by Williams and Steeg had been stolen from a homicide victim in National City. While there is no explicit concession in Steeg's brief, the tenor of his argument necessarily indicates a recognition that the NCIC information gave De Hoedt and Burris probable cause to arrest Steeg and Williams on suspicion of murder and to search room 28 and the car.
The focus of our inquiry, therefore, is on the police actions beginning with the entry of room 28 and ending with the receipt of the NCIC information. We must determine whether the Las Vegas officers acted reasonably and, if not, the extent to which the unreasonable conduct resulted in their later obtaining incriminating evidence.
To a large extent, we view the dispute over whether Finckel was “arrested” or “detained” in room 28 to be an academic exercise. Both an arrest and a detention involve the forcible immobilization of a person suspected of having some connection to criminal activity; both constitute a “seizure” of the person within the meaning of the Fourth Amendment. (Terry v. Ohio (1968) 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (“[W]herever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.”).) The distinction between detentions and arrests lie in their purpose and scope. When persons are arrested, suspicion of involvement in a crime has focused on them to such an extent that we are socially willing to tolerate an indefinite short-term restraint on their liberty. As the Supreme Court observed in Terry, an arrest “is inevitably accompanied by future interference with the individual's freedom of movement․” (392 U.S. at p. 26, 88 S.Ct. at 1882; see also id., at pp. 26–27, 88 S.Ct. at 1882–83, defining “arrest” as “taking a person into custody for the purpose of prosecuting him for a crime.”) Detentions, on the other hand, are primarily investigative rather than accusatory in nature and while no fixed time limit can be imposed, a detention can last only so long as the officer continues to possess objectively reasonable suspicion of the detainee's involvement in a crime and the detention is calculated to confirm or refute that suspicion within a reasonable period of time. (See United States v. Sharpe (1985) 470 U.S. 675, 105 S.Ct. 1568, 1574–1575, 84 L.Ed.2d 605.)
In the present case, the information contained in Magee's telephone call gave the Las Vegas police ample cause to investigate.8 Had Kevin Finckel been somewhere other than inside a private dwelling, such an investigation would reasonably include his warrantless detention for questioning. Within minutes of his forcible immobilization, Finckel's answers to the questions posed by Detective Mc Guckin confirmed the substance of Magee's tip and established that Finckel was either an important witness or implicated in the crime. In view of the trial court's factual finding that Finckel voluntarily cooperated with police (see ante, p. 913), we think it clear Finckel's detention was justified at its inception and not unnecessarily prolonged.9 (United States v. Sharpe, supra, 105 S.Ct. at pp. 1573, 1575.)
The problem in this case arises not in deciding whether Finckel was arrested or detained but rather in determining whether the Las Vegas officers were authorized to make a warrantless non-consensual entry into room 28 in order to detain and question Finckel. In Payton v. New York (1980) 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639, the U.S. Supreme Court established the general rule that in order to arrest a person inside a residence, the police must have both probable cause and a warrant.
“To be arrested in the home involves not only the invasion attendant to all arrests but also an invasion of the sanctity of the home. This is simply too substantial an invasion to allow without a warrant, at least in the absence of exigent circumstances, even when it is accomplished under statutory authority and when probable cause is clearly present.” (United States v. Reed (2d Cir.1978) 572 F.2d 412, 423, quoted with approval in Payton, supra, 445 U.S. at pp. 588–589, 100 S.Ct. at p. 1381.)
We take it as a given that the Payton principle applies equally to entries of motel rooms (see Stoner v. California (1964) 376 U.S. 483, 490, 84 S.Ct. 889, 893, 11 L.Ed.2d 856) for the purpose of making detentions (see People v. Williams (1979) 93 Cal.App.3d 40, 56–57, 155 Cal.Rptr. 414; People v. Mendoza (1979) 87 Cal.App.3d 1008, 1012, 151 Cal.Rptr. 489) and the People do not contend otherwise.10 Rather, they contend that exigent circumstances excuse the police failure to obtain a warrant. They point to the information the officers possessed suggesting the suspects in room 28 were armed and note that the officers had no way of knowing whether the two men in the white hatchback had returned to the room. Based on these facts, the People argue that the Las Vegas officers could not very well have discussed the situation with Finckel at the door to room 28 and waited until he invited them in since violent resistance from Finckel or another of the suspects was a forseeable possibility. Accordingly, they urge that a warrantless entry of room 28 to immobilize Finckel and quickly secure the room was necessary and prudent.
The difficulty with the People's argument lies in its implicit assumption that the police acted reasonably in choosing to investigate the anonymous phone call by approaching room 28. We have no quarrel with the contention that four uniformed officers and a plainclothes detective standing at the door to a motel room suspected to contain armed murder suspects might reasonably fear for their safety. The danger to the officers, however, was created by their decision to approach room 28. Had they instead chosen to investigate the phone tip by staking out the motel and waiting for the white hatchback to return, the information obtained by running a license plate check would clearly have yielded probable cause for the entry and search at room 28.11 Here there was no exigency in the sense that had the police delayed, no unremediable consequences would have ensued, e.g., the destruction of evidence or the escape of the suspects.12
We recognize that the U.S. Supreme Court has cautioned lower courts against engaging in “unrealistic second-guessing” of police faced with “a swiftly developing situation.” (Sharpe, supra, 105 S.Ct. at p. 1576.) We can understand how the officers' first inclination on arrival at the Villa Inn would be to check out who was in room 28 in hopes of confirming the information provided by the anonymous telephone informant. But the sanctity of the home and other similar dwellings such as the motel room in this case is too important a part of our culture to lightly dispense with the warrant requirement and sanction the warrantless intrusion which occurred here. (See generally People v. Ramey (1976) 16 Cal.3d 263, 271–275, 127 Cal.Rptr. 629, 545 P.2d 1333.)
This unwarranted police conduct, however, does not require reversal of Steeg's conviction because of two independent conclusions we reach. First of all, we suspect that even in the absence of the warrantless police entry into room 28, the evidence seized by the Las Vegas police—particularly the statements of Kevin Finckel—inevitably would have been discovered.13 (See Nix v. Williams (1984) 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377; see also Carlisle v. State (1982) 98 Nev. 128, 642 P.2d 596, 597–598.) The facts establish that the white hatchback containing Steeg and Williams returned to the Villa Inn within 10 to 15 minutes of the police arrival. The information known to police via the informant provided reasonable cause to detain the occupants of the car when it returned to the motel,14 as Officers De Hoedt and Burris in fact did. We agree with Judge Reed's conclusion that the officers conduct during the detention of Steeg and Williams was reasonable given the circumstances which justified it, and that their decision to draw weapons and handcuff the suspects did not render the detention illegal. (See ante, fn. 9.) As a product of this detention, reasonable in scope, the officers within 15 minutes learned that the car had been reported stolen from a homicide victim. This information fully corroborated the anonymous telephone tip and gave the officers probable cause to arrest Steeg, Williams and arguably the suspect they knew remained in room 28. (See ante, fn. 11.)
More importantly, we observe that the critical items of evidence against Steeg which he seeks to have suppressed are Finckel's testimony, the murder weapon and Gregory Lock's car. We have explained why we believe the seizures of the gun and the car were proper. As to Finckel, we would have to determine that the warrantless entry of room 28 was such as to taint not only his statements in the room and not only his statements at the police station but also his later decision to accept the prosecutor's offer of a plea bargain to second degree murder in exchange for his testimony against Steeg and Williams.
We are unaware of any controlling authority which considers the specific issue of whether the illegal arrest or detention of an accomplice so taints that individual as to preclude his later voluntary testimony against the defendant at trial. Two U.S. Supreme Court cases, however, provide the parameters for our analysis. In United States v. Ceccolini (1978) 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 defendant sought to exclude the testimony of a witness whose knowledge of certain incriminatory facts became known to the government as a result of an illegal search. The Court emphasized that significantly greater costs are associated with the exclusion of live witness testimony and, accordingly, that in contrast to the exclusion of physical evidence, “a closer, more direct link between the illegality and that kind of testimony is required.” (Id., at p. 278, 98 S.Ct. at p. 1061.) Ceccolini focused on the witness' ability to freely choose whether to testify as the key factor supporting this distinction. (Id., at pp. 276–277, 98 S.Ct. at pp. 1060–1061.)
Ceccolini, unlike the present case, dealt with the testimony of a percipient witness who was in no way implicated in the underlying criminal activity. The oft-cited case of Wong Sun v. United States (1963) 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 presented the question whether the defendant's own post-arraignment statement should be suppressed as the fruit of his earlier illegal arrest. Holding that the statement was admissible, the Court based its conclusion that the taint had been dissipated “[o]n the evidence that Wong Sun had been released on his own recognizance after a lawful arraignment, and had returned voluntarily several days later to make the statement, ․” (Id., at p. 491, 83 S.Ct. at p. 419.) Although Wong Sun received what was effectively a Miranda warning 15 (id., at p. 476, 83 S.Ct. at p. 411), he was not advised by counsel at the time he made his statement. (Ibid.)
In the present case, we view Finckel's decision to voluntarily enter into a plea bargain as providing sufficient evidence of attenuation. Unlike Wong Sun, Finckel was at the time represented by counsel, who was in a position to advise him as to the likelihood his earlier statements would be suppressed. Notwithstanding that possibility, Finckel decided to plead guilty and testify against Steeg. This voluntary act, in our view, purged the taint of any illegal detention which occurred in room 28.
The decisions of several federal appellate courts support our conclusion. Perhaps the closest on point is a pre-Ceccolini case, United States v. Hoffman (7th Cir.1967) 385 F.2d 501. Co-defendants Hoffman and Johnson were arrested along with an accomplice Fears on charges arising out of a money order fraud scheme. The government conceded the arrests were illegal. (Id., at p. 503.) Nine months prior to defendants' trial, Fears pleaded guilty to certain charges and agreed to testify against Hoffman and Johnson. Defendants on appeal argued that Fears' testimony was tainted by the earlier illegal arrest and therefore inadmissible. The Seventh Circuit rejected defendants' contention, focusing on the fact that since Fears had been charged as a co-defendant with Hoffman and Johnson, his testimony could in no sense have been compelled because he was protected by a Fifth Amendment until he elected to plead guilty.
“Fears' voluntary decision to plead guilty was the factor which produced his later testimony against the appellants. And such factor is sufficiently distinguishable to be purged of the primary taint of the illegal arrest. Fears' decision, and the testimony it ultimately prompted, involved the exercise of those attributes of will, perception, memory and volition unique to the individual human personality which serve to distinguish the evidentiary character of a witness from the relative immutability of inanimate evidence [citations]. And the exercise of such attributes can, and under the circumstances here presented do, effect an attenuation dissipating any taint which pervaded the original disclosure of the existence and identity of the witness.” (Id., at p. 504.)
The Tenth Circuit reached a similar conclusion in United States v. Beasley (10th Cir.1973) 485 F.2d 60. Citing Hoffman, the court explained:
“[W]hen the testimony of an accessory is used there would often exist grounds for ruling that the giving of the testimony results from the accessory's desire to help himself or herself. Thus, the exercise of human volition intervenes and it is not the product of the unlawful arrest.” (Id., at p. 64.)
Also persuasive is the Second Circuit's decision in United States v. Leonardi (2d Cir.1980) 623 F.2d 746 where an illegal search of defendant's motel room yielded physical evidence suggesting the identity of defendants' accomplice in two bank robberies. The accomplice was later arrested on an unrelated charge and when confronted with the physical evidence, confessed. Later, in exchange for a plea bargain, the accomplice testified at trial against his former confederate. The court held that the accomplice's testimony was not the tainted product of the illegal search, finding it was due to the accomplice's desire to cooperate “as a matter of self interest․” (Id., at p. 753.)
Here, Finckel's plea bargain was negotiated and finalized while the motion to suppress was pending. He and his counsel were more than aware of the suppression issue. Rather than continuing, with Steeg and Williams, to challenge the admissibility of his prior statements, Finckel chose to forego that opportunity and instead testify as part of a plea bargain. Clearly Finckel was not the public-spirited citizen-witness in Ceccolini. Yet Hoffman, Beasley and Leonardi make clear that a criminal co-defendant motivated by “self interest” and a “desire to help himself” can also testify voluntarily and thereby purge the taint of an initial illegal arrest or detention. While we cannot say for certain that Finckel would have accepted the same plea bargain had there been no evidentiary fruits of the illegal entry, the Supreme Court's analysis in Wong Sun specifically rejected a “but for” causational analysis in favor of a more flexible approach. (See United States v. Ceccolini, supra, 435 U.S. at p. 276, 98 S.Ct. at p. 1060.) As such, Wong Sun and its progeny represent a policy judgment balancing the costs and benefits of the exclusionary rule. Consistent with significant federal precedent,16 we believe that judgment does not warrant the exclusion of an accomplice's trial testimony where, following an illegal arrest or detention, the accomplice on advice of counsel elects to accept a plea bargain and testify against his former co-defendants. As to Finckel, we conclude the illegal entry into room 28 played no “meaningful part in [his] willingness to testify.” (Ceccolini, supra, 435 U.S. at p. 277, 98 S.Ct. at p. 1060.) Accordingly, even as to Finckel's testimony, the motion to suppress was properly denied.
Steeg nonetheless argues that this court is precluded from even considering questions of inevitable discovery or attenuation because the People failed to argue such theories at the 1538.5 hearing. As to inevitable discovery, although Judge Reed did not rule on the issue at defendants' request (see ante, fn. 13), the issue was raised and argued by the People. Thus, while we do not presume to engage in disputed fact-finding, we assume the parties presented all material evidence on the issue and we draw our conclusions from the undisputed facts in the record.
As to the question of attenuation, we recognize the issue was not raised before the superior court and thus there is no guarantee that the record contains all evidence the parties deemed relevant. For instance, Steeg points out that Finckel never testified as to what motivated him to accept the plea bargain. (See People v. Superior Court (Sosa) (1982) 31 Cal.3d 883, 892, fn. 5, 185 Cal.Rptr. 113, 649 P.2d 696.) Under normal circumstances this would preclude our consideration of the issue here. (See Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640, 108 Cal.Rptr. 585, 511 P.2d 33.) In the present case, however, we hold as a matter of law that where statements incriminating a defendant are illegally obtained from a co-defendant who later, on the advice of counsel, agrees to testify against the defendant as part of a plea bargain, that later testimony is the product of the co-defendant's voluntary choice so as to necessarily dissipate any taint of the initial illegality. There is no dispute in the present case that Finckel agreed to testify against Steeg as part of a plea bargain and that Finckel was represented by counsel. On these facts alone, then, we hold that any taint flowing from the detention and questioning of Finckel in the motel room was attenuated and his testimony at trial was properly admitted. And given his trial testimony, the error resulting from the court's failure to suppress his prior statements was harmless in the context of that portion of the judgment which we affirm.17
Steeg contends that Judge Low's procedural ruling before the section 1538.5 motion was heard improperly shifted to him the burden of proving the illegality of warrantless searches and seizures conducted by the Las Vegas police, particularly the warrantless entry of room 28 and seizure of Kevin Finckel.18 (See Wilder v. Superior Court, supra, 92 Cal.App.3d at pp. 96–97, 154 Cal.Rptr. 494.) We agree. Wilder appropriately recognizes that where a defendant challenges a warrantless seizure, it makes no sense to require that the defense anticipate every possible exception to the warrant requirement and argue its inapplicability, as apparently occurred in the present case.19 (See ante, pp. 909–910, 911.) It is necessary, of course, that the defendant specifically identify the evidentiary items sought to be suppressed and establish, by evidence or stipulation, that they were seized without a warrant. (Wilder, supra, 92 Cal.App.3d at p. 96, 154 Cal.Rptr. 494.) It is then incumbent on the prosecution to identify the theory by which it seeks to justify the lack of a warrant and to present testimony and/or evidence to substantiate that theory. The burden remains on the prosecution to establish by a preponderance of the evidence that the seizure was constitutionally reasonable. (Guidi v. Superior Court (1973) 10 Cal.3d 1, 15, fn. 15, 109 Cal.Rptr. 684, 513 P.2d 908; People v. Superior Court (Bowman) (1971) 18 Cal.App.3d 316, 321, 95 Cal.Rptr. 757.)
The People have relied on People v. Manning, supra, 33 Cal.App.3d 586, 596–597, 109 Cal.Rptr. 531 to support their argument that Wilder need not be followed. We have some difficulty deciphering exactly what procedure the Manning court was advocating but to the extent it is inconsistent with Wilder, we decline to follow it. Manning suggests that a defendant moving to suppress evidence must do more than simply specify that the search or seizure was without a warrant because such a procedure would unjustifiably require “the People to array all police activity for scrutiny as to all imaginable, but previously unintimated constitutional criticism.” (Id., at p. 596, 109 Cal.Rptr. 531.) As Wilder makes clear, however, we are merely talking about an orderly pleading requirement which would specify that once a defendant identifies an item of evidence and alleges it was seized without a warrant,
“[t]he prosecutor should [plead] his justification prior to the hearing based upon the facts he expect[s] to prove at the hearing. [The defendant] should [then be] allowed an opportunity to file a written response to the attempted justification prior to the hearing. At a cost of one additional pleading, this procedure serves to focus the litigation upon the only relevant issues—the justifications relied upon by [the prosecutor] to sustain the warrantless seizure.” (92 Cal.App.3d at pp. 96–97, 154 Cal.Rptr. 494.)
At the hearing itself, the prosecution is not required to “array all police activity” before the court and the defendant but merely to present such evidence as will support the exception to the warrant requirement on which it has chosen to rely. In this way, “the issues are narrowed and sharpened to the benefit of all concerned.” (Id., at p. 97, 154 Cal.Rptr. 494.)
Application of the Wilder principle to the facts of the present case, however, is not as broad as Steeg asserts. Most of the evidentiary items sought to be suppressed were seized pursuant to warrants authorizing the search of room 28 and the car. Although Steeg alleged these warrants were the product of the earlier illegal seizure of Kevin Finckel, the existence of the warrants shifts the burden to the defendant to prove the warrant was invalid. Thus, Judge Low's ruling was not erroneous as to most of the items of evidence seized.
Quality and quantity, though, are not synonymous. As we have already noted, the key items of evidence which led to Steeg's conviction were undoubtedly Finckel's testimony and, to a lesser extent, the murder weapon seized by Officer De Hoedt and Gregory Lock's car. The police seizures of Finckel, the gun and the car were all made without benefit of a warrant. Thus, as to the critical items of evidence in the case, Steeg was entitled to have the People bear the burden of proving the seizures were reasonable.
We cannot conclude, however, that the error in allocating the burden of proof requires reversal on the facts of this case. The propriety of the police seizure of the car and the gun is not a close question on which the mistaken allocation of the burden of proof could possibly have had an impact. And our determination regarding inevitable discovery and attenuation of the taint are legal judgment calls we make based on the undisputed facts in the record. The concept of a “burden of proof” has relevance to factual controversies but not to the questions of law which are the crux of the issue here. (See People v. Leyba (1981) 29 Cal.3d 591, 596–597, 174 Cal.Rptr. 867, 629 P.2d 961.) A result more favorable to Steeg in the absence of the error is not reasonably probable. (See People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)20
Steeg's final contention with respect to the search and seizure issues involves Judge Reed's ruling denying a continuance pending the Nevada Supreme Court's action on defendants' petition for writ of mandate. Steeg argues that the denial of the continuance constituted an abuse of discretion which denied him due process and that the reopened suppression hearing following his conviction at which additional testimony was taken did not cure the due process violation because the court was without jurisdiction to hold such a hearing.
While we are not necessarily convinced the court was without jurisdiction to reopen the section 1538.5 hearing as to Steeg 21 (cf. People v. Cella (1981) 114 Cal.App.3d 905, 913–914, 170 Cal.Rptr. 915), we have serious concerns regarding the procedure employed here. A judge asked to rule on a post-conviction motion to suppress evidence faces the additional pressure of knowing that the time and expense of the trial will be wasted if the motion is granted. In addition, the standard on a section 1538.5 motion is not calculated to take into account the factor which lies at the heart of most post-trial proceedings (e.g., a motion for new trial or petition for writ of habeas corpus), that is, the effect of the evidence on the outcome of the trial. A judge ruling on a post-trial motion to suppress who concludes the evidence was illegally seized will be tempted to consider whether the exclusion of the evidence would likely have affected the verdict.
Suffice it to say we think the trial court should exercise all reasonable efforts to insure that the section 1538.5 motion is disposed of before trial. We recognize that the Nevada Supreme Court took more than six months to rule on defendants' petition but the record does not indicate any steps taken by the San Diego Superior Court to ascertain the probable amount of time before a ruling could be expected or whether the length of time taken by the Nevada Supreme Court was in any way affected by Judge Reed's denial of the continuance request.
We need not and do not determine whether the court abused its discretion in denying a continuance. This is one of those rare cases in which we can be sure that any error which occurred did not prejudice the defendant. For even if the reopened hearing should not have been conducted, we can be sure that had the evidence there presented been included in the initial hearing, it would have had no impact on Judge Reed's ultimate ruling or on our affirmance of that ruling. Of the “discrepancies” in the testimony identified by defendants (ante, p. ––––), the only one we view as even moderately significant was Officer Burris' testimony that he viewed Steeg and Williams as being under arrest at the time they were handcuffed, which was just before receipt of the NCIC information. Of course, we do not know whether Burris' partner, Officer De Hoedt, shared the same subjective belief but in any event, a police officer's subjective perception that an arrest has been effected is not determinative where “[his] conduct thereafter involved no more than a temporary detention would have allowed.” (People v. Waters, supra, 30 Cal.App.3d at p. 360, 106 Cal.Rptr. 293.) We are convinced that by whatever standard it is measured, the denial of a continuance did not prejudice Steeg. (See Chapman v. California, supra, 386 U.S. at p. 24, 87 S.Ct. at p. 828; People v. Watson, supra, 46 Cal.2d at p. 836, 299 P.2d 243.)
By virtue of the operation of the felony-murder rule, the critical issue in the case was Steeg's liability for the robbery of Gregory Lock. The prosecutor argued that Steeg aided and abetted Michael Williams in that robbery. The jury was instructed pursuant to standard CALJIC instructions on the requirements for aider liability:
“One who aids and abets is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing, but he is also liable for the natural and reasonable or probable consequences of any act that he knowingly aided or encouraged.” (CALJIC No. 3.00.)
“A person aids and abets the commission of a crime if, with knowledge of the unlawful purpose of the perpetrator of the crime, he aids, promotes, encourages or instigates by act or advice, the commission of such crime.” (CALJIC No. 3.01.)
These instructions were recently disapproved by the Supreme Court because they fail to specify that the defendant must intend to aid the commission of the crime. In People v. Beeman (1984) 35 Cal.3d 547, 560, 199 Cal.Rptr. 60, 674 P.2d 1318, the court determined to “require proof that an aider and abettor act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” (Emphasis in original; see also People v. Caldwell (1984) 36 Cal.3d 210, 223–224, 203 Cal.Rptr. 433, 681 P.2d 274.)
There is currently a lively debate among the appellate courts of this state as to the circumstances under which Beeman error may be deemed harmless. Watson,22 Chapman23 and modified per se 24 standards have all been proffered. (See, e.g., People v. Acero (1984) 161 Cal.App.3d 217, 208 Cal.Rptr. 565; People v. Gilman (1984) 156 Cal.App.3d 760, 203 Cal.Rptr. 6.) Numerous cases are currently pending before the Supreme Court on this issue. (See, e.g., People v. Valenzuela, Crim. 22648; People v. Darwiche, Crim. 23737; People v. Johnson, Crim. 23867.) Even if the most stringent “per se” standard is ultimately adopted by the Supreme Court, however, we do not believe reversal is required on the facts of this case.
There is, to be sure, some evidence indicating Steeg did not intend to aid Williams in the taking of Lock's wallet.25 That evidence, however, is in the form of Steeg's testimony to the effect he did not know Williams was going to take the wallet when he pulled the gun on Lock. Rather, he displayed the weapon initially in an attempt to force Lock to drive to North Park or to leave Lock and drive himself to North Park. Steeg specifically testified he had put the gun away before Williams took Lock's wallet, and that it was strictly Williams' idea to take the wallet.
On the instructions as given, the jury could not find Steeg guilty of aiding and abetting the robbery unless it concluded he assisted Williams “with knowledge of [Williams'] unlawful purpose.” Thus, it must necessarily have found that when Steeg pointed the gun at Lock's neck, he knew Williams intended to rob the victim.26 Having made this factual finding, it is inconceivable the jury would not also have found that Steeg intended to aid Williams.
In People v. Garcia, supra, 36 Cal.3d 539, 205 Cal.Rptr. 265, 684 P.2d 826, the Supreme Court determined that a modified rule of per se reversal was mandated by the federal constitution in cases of Carlos error—that is, where the trial court failed to instruct that before the jury could find a special circumstance allegation true, it was required to determine that the defendant intended to kill the victim. (See Carlos v. Superior Court (1983) 35 Cal.3d 131, 153–154, 197 Cal.Rptr. 79, 672 P.2d 862; see also post, pp. 925–927.) This court has previously applied the Garcia analysis to Beeman error. (See People v. Acero, supra, 161 Cal.App.3d at p. 228, 208 Cal.Rptr. 565.)
Although characterized as a “per se” rule, Garcia recognizes four exceptions to the requirement of automatic reversal. Two are relevant for our purposes here. First, Garcia indicates that reversal is not required where “the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.” (36 Cal.3d at p. 555, 205 Cal.Rptr. 265, 684 P.2d 826.) Also, where “the record not only establishes the necessary intent as a matter of law but shows the contrary evidence not worthy of consideration,” the so-called “Cantrell-Thorton ” exception 27 may apply. (Id., at pp. 555–556, 205 Cal.Rptr. 265, 684 P.2d 826.)
We believe an amalgam of the “other instruction” and Cantrell-Thornton exceptions articulated in Garcia is applicable to the present case. From the aiding and abetting instructions which were given, we know the jury found that Steeg aided Williams knowing he was going to commit a robbery. If one eliminates the evidence bearing on the issue of Steeg's knowledge, there is no “evidence ․ worthy of consideration” suggesting Steeg did not intend to aid Williams. As the court recognized in People v. Yarber (1979) 90 Cal.App.3d 895, 153 Cal.Rptr. 875, a precursor to Garcia, “[F]rom a person's action with knowledge of the purpose of the perpetrator of a crime, his intent to aid the perpetrator can be inferred [and] [i]n the absence of evidence to the contrary, the intent may be regarded as established.” (Id., at p. 916, 153 Cal.Rptr. 875, emphasis omitted.) Because the record contains no evidence to the contrary other than that necessarily disbelieved by the jury, reversal is not required.
The special circumstances alleged against Steeg was that “[t]he murder was committed while the defendant was engaged in or was an accomplice in the commission of ․ [a] [r]obbery ․” within the meaning of section 190.2, subdivision (a)(17)(i). Steeg asserts the trial court erred in failing to instruct the jury that it could return a true finding on this special circumstance allegation only if it determined Steeg intended to kill Gregory Lock. We agree that the Supreme Court decisions in Carlos v. Superior Court, supra, 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862 and People v. Garcia, supra, 36 Cal.3d 539, 205 Cal.Rptr. 265, 684 P.2d 826 mandate reversal of the special circumstance finding.
As we previously noted (ante, p. 925), Carlos error is reversible per se subject to four specific exceptions. Here, the People rely on only one of those exceptions,28 contending that “the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.” (Garcia, supra, 36 Cal.3d at p. 555, 205 Cal.Rptr. 265, 684 P.2d 826.) They point to an instruction given by the trial court which is based on section 190.2, subdivision (b):
“If defendant was not the actual killer, it must be proved beyond a reasonable doubt that he intentionally aided, abetted, counseled, commanded, induced, solicited, requested or assisted the actual killer in the commission of the murder in the first degree before you are permitted to find the alleged special circumstance of that first degree murder to be true as to the defendant.” (emphasis added).
The problem with the People's argument that this instruction demonstrates the jury found Steeg possessed an intent to kill is that it speaks of assistance “in the commission of the [first degree] murder․” Yet first degree murder was defined elsewhere consistent with the felony-murder rule to include any “unintentional or accidental, [killing] which occurs as a result of the commission of or attempt to commit the crime of robbery․” This definition necessarily includes killings which take place without the defendant having harbored an intent to kill. Thus, even assuming the jury focused on this instruction, it could have found that Steeg intentionally assisted Michael Williams in the commission of the first degree murder because he intentionally assisted in a robbery during which a killing took place.
An analogous issue was recently addressed by the Supreme Court in People v. Murtishaw (1981) 29 Cal.3d 733, 175 Cal.Rptr. 738, 631 P.2d 446. The defendant there relied on the principle that the crime of assault with intent to commit murder requires a specific intent to kill. He argued that contradictory jury instructions may have allowed the jury to convict him without finding such a specific intent. After noting that the felony-murder instructions given to the jury did not require an intent to kill, the court concluded that
“taken as a whole, the instructions on assault with intent to commit murder were contradictory. The court defined the mental element essential to the crime in two different ways—intent to kill and intent to murder—and by implication defined the latter to include forms of murder not requiring an intent to kill.” (Id., at p. 763, 175 Cal.Rptr. 738, 631 P.2d 446.)
Our rejection of the People's argument is supported by the fact that none of the participants in the trial apparently interpreted the instruction now focused on by the People as requiring a finding of an intent to kill. Steeg specifically requested an instruction which would have identified such a requirement.29 His request was refused by Judge Greer on the theory that Enmund v. Florida (1982) 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 only required such an intent to impose the death penalty but not to result in a finding of special circumstances. Accordingly, Judge Greer ruled he would only give such an “intent to kill” instruction during a subsequent penalty phase hearing, if such occurred. He never intimated that Steeg's proffered instruction was cumulative to the section 190.2(b) instruction.
Further support is provided by the prosecutor's comments to the jury. Before any evidence was presented, he explained that when a person “aids and abets a robbery wherein a person is killed, whether premeditatedly, as is the case here, or inadvertently or accidentally, that is ․ special circumstances.” In his closing argument, the prosecutor repeated the same theme, which the Attorney General now concedes was error. We would torture common sense were we to conclude that the 190.2(b) instruction clarified for the jury what was hidden from an experienced trial judge and two seasoned litigators.30
On our own at oral argument, we raised with counsel our concern regarding the jury's finding that Steeg personally used a firearm in the commission of the murder within the meaning of section 12022.5. Recognizing that the prosecutor conceded at trial that Williams rather than Steeg was the actual killer, the Attorney General nonetheless attempts to support the jury's finding by arguing the jury undoubtedly found that Steeg premeditated the murder of Gregory Lock. According to the Attorney General, the jury could properly find that Steeg personally used the firearm if it concluded that he handed the gun to Williams intending that it be used to kill Lock.
We have difficulty finding sufficient support in the record for the conclusion that Steeg premeditated Gregory Lock's murder. But even accepting that assertion as true, it still does not follow that Steeg personally used a gun to commit the murder. The concept of personal use “in the commission of” an offense clearly connotes that the defendant personally used the weapon to facilitate the commission of the crime. While it is true that the concept of “firearm use” is broad enough to encompass the pointing of a gun at a robbery victim to threaten and thereby facilitate the robbery (People v. Chambers (1972) 7 Cal.3d 666, 672, 102 Cal.Rptr. 776, 498 P.2d 1024), the standard is different where the underlying crime is murder. A firearm is not “used” in the commission of a murder unless the defendant uses the weapon to kill, i.e., shoots the victim. Any other rule would cause a defendant's liability for the enhancement to turn on the fortuity of whether he had touched the weapon at some point during the criminal enterprise rather than on whether he used the gun to facilitate the crime's commission.
The special circumstances finding is reversed. The section 12022.5 enhancement is stricken. In all other respects, the judgment is affirmed.
1. All statutory references are to the Penal Code unless otherwise specified.
2. De Hoedt's partner, Timothy Burris, and Schultz' partner, Michael Karstedt, were among the five witnesses whose testimony the Eighth Judicial District Court found would be cumulative.
3. Steeg appears to question some of the officers' testimony regarding information not contained in Magee's first phone call which must therefore have been dispatched to officers during or after Magee's second phone call. Since Magee was in the middle of his second call when the officers reported back the error in location from the Vista Motel, the additional information could have been communicated while they were en route to the Villa Inn. Also, both De Hoedt and Schultz testified that they or their partners were carrying portable walkie-talkies on which they could receive information from the dispatcher after they left their vehicles.
4. “CALLER: Yeah. Two officers are walking up to me right now.“OPERATOR: They are. Okay. But just—you know. Just kind of act normal like you don't know, but, you know, they're going to question you about this so that people don't think—“CALLER: I think there might be one up in the room.“OPERATOR: Okay.“CALLER: But these guys—I think they're like acid heads—Well, I know they're crazy.“OPERATOR: [Directed to office personnel.]He said two of them just walked right up towards him.“CALLER: How come they're looking at me?“OPERATOR: Hold on a second.[Directed to office personnel.]He wants to know how come the policemen are looking at him.[Unintelligible response from office personnel.]“OPERATOR: Hello?“CALLER: Yeah.“OPERATOR: Okay. What did you tell them?“CALLER: Uh?“OPERATOR: What did you tell them?“CALLER: He was asking me if I was talking to a policewoman.“․“OPERATOR: What did you say?“CALLER: I said no, man. I don't want to get involved.“OPERATOR: Yeah. Okay.[Directed to officer personnel.]“The guy they just asked has been talking to the police—is him but he does not want to be involved.[Unintelligible response from office personnel.]“OPERATOR: [Directed to office personnel.]“Yeah. Okay. Okay.“OPERATOR: They're going to leave you alone. Okay․”
5. Schultz and Mc Guckin both testified as to the Miranda warning but Finckel denied receiving any advisement.
6. This weapon was later identified by Fran Rodriguez, the mother of Steeg's girlfriend, as the gun stolen from her house which both Steeg and Finckel testified was used by Williams to shoot Gregory Lock. It was removed from the car by another officer shortly after it was discovered by De Hoedt.
7. Judge Reed ruled that Nevada law would apply to all actions taken by the Las Vegas police officers prior to the involvement of the National City police. After their arrival on the evening of October 3, the legality of police action was evaluated under California law. Steeg does not contest this ruling on appeal.
8. We recognize that Steeg contends the entry into room 28 was a “search” and that the seizure of Kevin Finckel was an “arrest,” both of which required probable cause. In arguing that the police did not have probable cause, Steeg evaluates the information known to the officers as a result of Magee's anonymous phone tip under the two-prong test of Aguilar v. Texas (1964) 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 and Spinelli v. United States (1969) 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637. He recognizes that Aguilar and Spinelli have been superceded by the “totality of the circumstances” approach of Illinois v. Gates (1983) 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, but urges that we not apply Gates retroactively to the present case.The fact that the People concede the Las Vegas officers did not have probable cause to search or arrest at the time of the entry of room 28 does not obviate the need for our inquiry into the standards by which an informant's reliability are judged. The U.S. Supreme Court made clear in Adams v. Williams (1972) 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 that while the reliability of an informant's tip providing reasonable cause to detain need not be as great as that necessary to furnish probable cause to arrest under the Aguilar-Spinelli test, the information provided by the informant must nonetheless provide “enough indicia of reliability to justify the officer's forcible stop․” (Id., at p. 147, 92 S.Ct. at p. 1924.)We have no trouble concluding that Gates is retroactive. We recently had occasion to explain why a new decision such as Gates which narrows Fourth Amendment rights is generally entitled to retroactive application (People v. Helmquist (1984) 161 Cal.App.3d 609, 615–616, 207 Cal.Rptr. 718) and need not repeat that analysis here. (See also People v. MacAvoy (1984) 162 Cal.App.3d 746, 759–760, 209 Cal.Rptr. 34.) We note, however, that the Supreme Court itself saw fit to apply Gates retroactively in Massachusetts v. Upton (1984) 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721. (See also United States v. Estrada (9th Cir.1984) 733 F.2d 683, 685 (applying Gates retroactively).)We do not know whether the U.S. Supreme Court would apply its Adams v. Williams rationale to develop a standard for informant reliability in detention cases which is less stringent than the Gates “totality of the circumstances” approach or would merely apply Gates. Even under the Gates test, however, we view the facts of this case as indicating sufficient reliability to justify an investigative detention. Although the informant was anonymous, the nature of the detailed information he provided strongly suggested his personal knowledge and observation of the facts. The officers confirmed that he was making his phone call from the Villa Inn (see ante, p. 911) and that room 28 was registered to someone from California. Viewing the totality of the circumstances, Magee's information provided sufficient justification for further investigation.
9. Steeg also appears to contend that the manner in which the police immobilized Finckel rendered it an arrest rather than a detention, focusing on the fact that police entered room 28 with guns drawn, proceeded to pat down Finckel and advised him of his Miranda rights. As we have noted, however, an arrest and a detention both involve the forcible immobilization of an individual for a period of time. The critical inquiry, in our view, is whether the methods used by police to effect the immobilization which attends a detention were reasonable under the circumstances and, if not, whether the seizure of evidence was made possible by the unreasonable methods. The mere fact that guns were drawn or handcuffs were used does not automatically render an otherwise valid detention illegal. (See e.g., United States v. Coades (9th Cir.1977) 549 F.2d 1303, 1305; United States v. Purry (D.C.Cir.1976) 545 F.2d 217, 220; People v. Waters (1973) 30 Cal.App.3d 354, 358, 360, 106 Cal.Rptr. 293.)
10. This case, of course, highlights the difficulty for police possessing reasonable suspicion who attempt to detain an individual inside a residence. They cannot enter without a warrant yet they cannot obtain a warrant until the reasonable suspicion escalates to probable cause. (See In re Danny E. (1981) 121 Cal.App.3d 44, 52, 174 Cal.Rptr. 123.)
11. We suspect that had the white hatchback been stopped in the parking lot before the entry of room 28, exigent circumstances would have then justified a warrantless entry of the room to prevent the destruction of evidence on the theory that the remaining occupant may have become aware of the car stop and the subsequent arrest of Steeg and Williams.
12. The People unpersuasively rely on United States v. Hicks (9th Cir.1985) 752 F.2d 379 in which the court, in upholding the warrantless entry of a home, quoted United States v. McConney (9th Cir.1984) 728 F.2d 1195, 1206 for the proposition that “ ‘[w]hen police have properly knocked and announced their identity and purpose, mild exigency is sufficient to justify simultaneous entry when entry can be accomplished without physical destruction of property.’ ” (752 F.2d at p. 383.)Initially, we do not totally understand the Hicks' court's reliance on McConney. McConney, as we read it, was a case involving the execution of a search and arrest warrants in which the defendant contended the executing officers failed to comply with statutory knock-notice requirements by waiting until they were “refused admittance” by the occupant before entering. (18 U.S.C. § 3109.) While it may be that “mild exigency” should suffice to excuse technical noncompliance with all aspects of the knock-notice requirements when officers executing a warrant are confronted by an unlocked screen door, the Hicks court failed to explain why this principle has any application to warrantless entries in violation of the Fourth Amendment.In any event, some exigency—“mild” though it may have been—existed in Hicks in that federal agents reasonably suspected that the occupants of the house had been tipped off to the agents' arrival and consequently that they may have been destroying evidence. In the present case, the occupants of room 28 had no way of knowing the police knew anything about them until the officers showed up at the door.
13. That the facts of this case naturally suggest application of the inevitable discovery doctrine is made clear by the fact that on two different occasions Judge Reed attempted to raise the issue on her own. In the first instance, the prosecutor apparently misinterpreted the judge's question and attempted to reargue the reasonableness of the officers' conduct. Then, in making her oral ruling, Judge Reed initially stated her alternative conclusion that the doctrine of inevitable discovery would apply, but defense counsel responded by requesting that the judge not make any findings unnecessary to her ruling, to which Judge Reed agreed.
14. In the reopened section 1538.5 hearing, Officer Karstedt specifically testified that had he encountered the suspect vehicle enroute to the Villa Inn—i.e., before any contact with Finckel—he would have stopped it.
15. In Brown v. Illinois (1975) 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416, the Court held that a Miranda warning, in and of itself, is insufficient to purge the taint of an illegal arrest which yields an incriminating statement by the defendant.
16. Steeg cites but one federal case to the contrary. In United States v. Rubalcava-Montoya (9th Cir.1978) 597 F.2d 140, co-defendant Ventura elected to take the stand in his own trial and testify against defendants. After concluding that Ventura had been arrested following an illegal search which yielded incriminating evidence, the court ordered suppression of his trial testimony, reasoning that his decision to testify was likely based on his perception that the illegally seized evidence presaged an unfavorable outcome to the trial. (Id., at p. 143.)In contrast to the present case, Ventura did not elect to plead guilty and his decision to testify occurred only after the court had denied a motion to suppress the evidence. Finckel, on the other hand, chose to forego his opportunity to challenge the illegality of the police conduct. Thus, no illegally seized evidence was ever used against him such that his testimony can be said to be the product of police illegality. In any event, to the extent Rubalcava-Montoya represents a divergent minority view in the federal courts, we decline to follow it.
17. We express no opinion on the possible admissibility of Finckel's earlier statements for impeachment purposes should there be a retrial of the special circumstance allegation. (See People v. Disbrow (1976) 16 Cal.3d 101, 108–110, 127 Cal.Rptr. 360, 545 P.2d 272; People v. Taylor (1972) 8 Cal.3d 174, 182, 104 Cal.Rptr. 350, 501 P.2d 918; People v. Flores (1982) 128 Cal.App.3d 512, 522–523, 180 Cal.Rptr. 368.)
18. The People suggest that Judge Low's ruling merely shifted to defendants the burden of producing evidence on the invalidity of the warrantless seizures, not the ultimate burden of proof on the motion. Unfortunately, they fail to cite any portion of the record in support of this contention.As we read the record, Judge Low's comments are ambiguous as to whether he was referring to the ultimate burden of proof or merely the burden of producing evidence. Judge Reed's statements, made in the context of expressing her view that she was bound by Judge Low's ruling, are similarly ambiguous, although she does discuss defendants as having “the burden of establishing that the search and seizure was unreasonable․” Giving Steeg the benefit of the doubt, we interpret the record to suggest that the court improperly imposed on defendants both the burden of production and the burden of proof.
19. As we noted in our recitation of the facts, the procedure employed by the trial court resulted in the unworkable situation where the People presented no witnesses and the defendants attempted to establish the illegality of the police conduct by calling the police officers as witnesses. Since the prosecution was never required to articulate a theory to justify the warrantless seizures, the questions asked of the officers varied considerably. Defense counsel had no incentive to present the prosecutor's best case, and accordingly was put in the position of wanting to ask enough but not too much. By its very nature, such a presentation illuminated the issue before the court in a less than adequate fashion.
20. To the extent Steeg is attempting to argue that the error in allocating the burden of proof constitutes a violation of his Fourth Amendment rights—a proposition with which we have some difficulty—we would nonetheless conclude the error so characterized was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.)
21. We intimate no opinion as to the court's jurisdiction to entertain the reopened hearing as to Steeg's co-defendant, Michael Williams.
22. People v. Watson, supra, 46 Cal.2d 818, 836, 299 P.2d 243.
23. Chapman v. California, supra, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.
24. People v. Garcia (1984) 36 Cal.3d 539, 554–555, 205 Cal.Rptr. 265, 684 P.2d 826.
25. The parties focus most of their argument on whether Steeg aided and abetted Williams' taking of Lock's wallet. Of course, the jury could have found that Steeg was guilty of robbing Lock of his vehicle. In fact, Steeg admitted during cross-examination that he intended to take the car:“Q Well, what did you want Mr. Lock to do when you put the gun to his neck?“A To pull over and let him out and we would drive the car to T.C.'s house and then we would leave the car.“Q So you didn't—“A That is what was intended.“Q You didn't want to make him drive you there?“A No.”Steeg points to other testimony suggesting that his intent to take the car was formed after his initial display of the weapon. He later disavowed that testimony but even if it were true, such a fact would not preclude liability for robbery in view of Steeg's testimony that Lock was always aware of the presence of the gun:“A I didn't keep the gun to his head.“Q You put it to his head?“A Yes, and then put it away. Not—I did not keep it on his head the whole time. He knew that the gun was there. And that is all that needed to be known.”As long as Steeg had formed the intent to take the car at the time he applied the force (see post, fn. 26), a robbery could be found to have occurred.Even on these facts, however, Steeg's testimony does not establish robbery of the car as a matter of law because he explained his intent was to drive the car to a friend's (T.C.'s) house in North Park and leave it there. It is thus arguable that Steeg did not possess the intent to permanently deprive Lock of the car. Accordingly, we must consider the effect of the aiding and abetting instructions as they relate to the taking of the wallet.
26. As an additional contention Steeg concedes the jury was instructed, consistent with Penal Code section 20, that as to the crime of robbery,“there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator and unless such specific intent exists, the crime to which it relates is not committed.”Noting, however, that the crime of robbery involves two central elements—i.e., (1) a taking (2) by means of force or fear—he contends the instruction is insufficient because it fails to specify that “not only must the taking and the intent to permanently deprive coincide but the force and the intent must coincide.” Referring to the facts of the case, Steeg argues that he “had no larcenous purpose when he pointed the gun ․” and thus, there was no concurrence of act and intent.We assume for the purposes of discussion that had Steeg proffered a properly tailored instruction on this point, he may well have been entitled to it. However, Steeg did not request any such clarifying instruction. Where an instruction merely amplifies legal principles already contained in correct instructions which were given to the jury, absent unusual circumstances we do not believe a sua sponte duty can be imposed on the trial court. (See People v. Harvey (1984) 163 Cal.App.3d 90, 112–113, 208 Cal.Rptr. 910.)
27. The label derives from People v. Cantrell (1973) 8 Cal.3d 672, 105 Cal.Rptr. 792, 504 P.2d 1256 and People v. Thornton (1974) 11 Cal.3d 738, 114 Cal.Rptr. 467, 523 P.2d 267.
28. The People's brief correctly summarizes that the Supreme Court has generally “reversed the special circumstance findings in cases where ․ there was evidence from which a jury might reasonably infer a lack of an intent to kill․” As previously noted, Steeg specifically testified he did not intend to kill Lock and his testimony was corroborated by Finckel at trial. (Ante, p. 907.) Thus, the People's later assertion that “there was plenty of evidence from which to infer an intent [that] a killing take place” is functionally irrelevant.
29. Steeg requested the following instruction.“To find that the special circumstances, referred to in these instructions as murder in the commission of a Robbery, is true, it must be proved:“That the murder was committed while the defendant was an accomplice in the commission of a robbery and that his acts in aiding or assisting another's acts were with the intent that the victim would be killed as a result.“Without finding that the defendant's actions were with the specific intent which would result in, or had the reasonable expectation of resulting in the death of the victim, you may not find special circumstances in this case.”
30. The fact that our analysis puts us at odds with the court in People v. Avalos (1985) 164 Cal.App.3d 850, 856, 211 Cal.Rptr. 15 does not alter our conclusion. We note that no petition for review was filed in Avalos.
WIENER, Associate Justice.
STANIFORTH, Acting P.J., and BUTLER, J., concur.