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

The PEOPLE, Plaintiff and Respondent, v. Elmer Lee NANCE, Defendant and Appellant.

No. D017201.

Decided: December 20, 1993

Cynthia M. Sorman, San Diego, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., Esteban Hernandez and Warren P. Robinson, Deputy Attys. Gen., for plaintiff and respondent.

In a case in which the proof of guilt depended for the most part on the admissibility of a confession, a jury found Elmer Lee Nance guilty of first degree felony murder based on rape (Pen.Code,2 §§ 187, subd. (a), 189) and forcible rape (§ 261, subd. (a)(2)) of Nancy Allison White, known by her husband and friends as “Al.”   The jury acquitted Nance of a charge of raping Al by a foreign object.  (§ 289, subd. (a).)  In a bifurcated proceeding after Nance waived jury trial of the issue, the court found true an allegation he had a prior serious felony conviction.   The court sentenced Nance to prison for 25 years to life on the first degree murder with a five-year consecutive sentence for the prior serious felony.   It stayed an upper eight-year term for the rape under section 654.

On appeal Nance challenges the admission of his confession on grounds:  (a) his arrest without a warrant for failure to register as a sex offender under section 290 was invalid because the arresting officer did not have reasonable cause to believe he committed this misdemeanor offense in the officer's presence;  (b) this misdemeanor arrest was a pretext that allowed him to be in custody when interrogated for an unrelated homicide;  (c) his confession was improperly admitted because the custodial interrogation resulting in the confession was unduly coercive;  and (d) the interrogating detectives ignored his invocation of his Miranda 3 rights with the result his confession was admitted in violation of the Fifth Amendment.   Nance also contends the trial court erred prejudicially when it failed to instruct the jury the victim must be alive in order to convict him of rape.   In a supplemental letter brief conceding we are bound by stare decisis to reject the contention, but filed in order to preserve his rights pending decision by the United States Supreme Court, Nance contends that CALJIC No. 2.90 and its definition of reasonable doubt are unconstitutional.   We find no basis for reversal in the contentions.


In August 1986, Corporal Milton White (Milton), Al's husband, was a United States Marine Corps aviation ordinance technician based in El Toro but temporarily stationed in El Centro.   Al stayed in El Toro with the couple's son until August 26, 1986, when she went to El Centro to celebrate the couple's second anniversary.   Driving their 1974 Volvo, Al spent the night with Milton in El Centro, then began her trip back to El Toro at about 12:30 to 1:00 p.m. on August 27, 1986.

At about 3 p.m. on August 27, 1986, the car overheated and Al pulled into a map stop off of Interstate 8 freeway near El Cajon where she telephoned Milton and tearfully told him of the problem with the car.   As Milton suggested, Al telephoned the Whites' next door neighbor in El Toro, Mark Mentikov, who said he would leave to pick her up as soon as his wife returned from an appointment and could take over the babysitting of the Mentikov's child and the White's child.   Mentikov left El Toro at about 4:30 p.m., went to the wrong rest area at first, and arrived about 8 p.m. at the map stop from which Al had called.   There, Mentikov saw the White's car unlocked, with the key in the ignition, all windows open, and Al's purse and overnight bag inside.   Mentikov did not find Al, who was safety conscious and ordinarily would not have left the car unlocked with its windows down.

Mentikov saw Nance in his pickup truck with camper shell at the map stop and approached him to ask if he had seen the woman driving the Volvo.   The tail gate of Nance's pickup was closed and as Mentikov approached and looked into the rear of the camper above the tail gate from an angle and at a distance of three feet, Nance reached up and closed the door to the camper.   Al's body was in the back of the camper at that time.   Nance told Mentikov he had not seen the girl who was driving the Volvo.   Mentikov wrote down the license plate numbers of the pickup and a Volkswagen van he had seen pulling out of the map stop.   Mentikov left a note for Al, took her car keys, purse and overnight bag and locked the Volvo before leaving for El Toro at 8:45 p.m., and arriving home at 10:30 p.m.

In the meantime, Milton got a ride from his supervisor, Sergeant Jerome Henderson, and arrived at the map stop at about 9:15 p.m.   There, he saw his car and an abandoned car, but not Al.   He was not sure whether he saw any other vehicles while he was there.   After making several telephone calls between 9:17 and 11:15 p.m. to his El Toro neighbors and a contact person in North Carolina trying to find out about Al, Milton and Henderson tried to make a missing person report with the San Diego County Sheriff's Department but were told that Al had not been gone 24 hours and an officer would not be sent out.   A deputy sheriff they flagged down told them the same thing.   They then drove to El Toro stopping at hospitals along the way.

Before these events, at 3 p.m. in the afternoon of August 27, Caltrans civil engineer, John Haydon, saw the White's Volvo arrive at the map stop and the young woman driver park near the telephones which she used.   By the time Haydon left the map stop at 4 p.m., the only vehicles he noticed that were there were the Volvo and a big rig truck;  he did not see Nance's blue pickup truck with a white camper shell.   The big rig truck driver, Robert H. Rossell, Jr., saw Al making a phone call at about 3 p.m.   At about 5 p.m., after Rossell took a nap and as he was leaving the map stop, he saw her sitting next to the Volvo.   Sergio and Stephanie Pereira arrived at the map stop between 5 and 5:30 p.m. on August 27.   The big rig truck was not there, but Nance's blue pickup truck with camper shell and the White's Volvo were parked in the map stop.   The Perieras saw no one at the map stop.

At about 15 minutes after midnight on August 29, 1986, San Diego County Sheriff's Patrol Deputy George Foote talked to Nance who was in the camper of his pickup truck at the map stop.   Foote asked Nance if he had been there the evening the woman disappeared from the map stop.   Nance was somewhat uncooperative, telling the deputy he had problems of his own and did not want to get involved in anyone else's problems.   Nance did tell the officer he had pulled into the map stop at about 9 p.m. of the night in question and that a white male had checked with him about whether he had seen a woman around the orange Volvo before taking a bag out of the car, locking it and leaving.

Within two days after Al was missing, Milton was at the map stop distributing flyers that had been printed by Al's employer.   Five days after Al's disappearance, Milton talked to a homeless couple living in their vehicle at the map stop.   The couple referred Milton to Nance who said he did not want to talk to Milton, did not know or care about anything and was not there at the time.   Nance told Milton to leave him alone, go away, get away from him.   Nance swore at Milton and his companion, Donnie Hunter, said he would use his shotgun on them if they came near him and finally drove away.   Milton's contact with Nance occurred September 1, 1986, the date two teenage boys discovered Al's body in a brushy area near Batiquitos Lagoon in Carlsbad, about 30 miles away from the map stop.

When Al's decomposed and totally naked body was found, a brassiere protruded from her rectum.   The brassiere had been pushed into her anal canal about an inch and one-half.   Upon autopsy her bikini panties were found inside her rectum.   Al's nose was flattened and she had multiple lacerations in the areas of her nostrils and lips.   Her tongue also was lacerated, as by the teeth being clamped about it.   Al had an extensive hemorrhage of up to six inches on the back left side of her scalp, caused by a blunt force that likely was from a source other than a strike of a hand.   The hyoid bone in Al's neck was broken, indicating she had been strangled.   Forensic pathologist, Robert Bucklin, M.D., who performed the autopsy, opined the cause of Al's death was probable strangulation, with associated blunt force trauma injuries to the nose, skin and scalp.   Positive identification of Al was made by dental comparison performed by Norman Sperber, forensic dentist.   Bucklin took smears from the body, but found no sperm and was unable to conduct a chemical test for seminal fluid due to the decomposition.

On September 4, 1986, Detective Wayne Simmons of the San Diego County Sheriff's Department contacted Nance at the map stop.   When Simmons told Nance he was looking for possible suspects in the murder, Nance told him he did not want to talk to him and started his pickup, driving it over a curb and away.   Simmons called for backup and followed Nance into a trailer park where he again told Nance he wanted to talk to him.   Nance said, “Fuck you.   I'm going to go in the trailer and get my friend's gun and shoot you.”   Simmons drew his weapon and told Nance he was under arrest for interfering with an officer in the performance of his duty.   After Nance turned away and Simmons placed his hand on Nance's shoulder, Nance punched Simmons in the chest and a struggle ensued.   When they could hear the sirens of the backup in the distance, Nance announced he was stopping and allowed Simmons to handcuff him.

At the Santee Sheriff's station, Simmons noted there were scratches on Nance's arms, and they were photographed.   Nance was hostile and uncooperative, and the next morning Simmons made a cursory search of the truck, not using a lab technician or criminalist, and found no signs of blood, hair or anything that might have indicated a struggle occurred inside the camper shell.   No evidence of significance, including no evidence of an attempt to clean up the camper, was found in Simmons's search.   During interrogation of Nance, Simmons and Detective Streed told him Al had been beaten to death and described the car she was driving.

In 1990, San Diego Police Department Detectives Ronald D. Thill and Dan Hatfield were assigned to the Metropolitan Homicide Task Force and were given the present murder case to investigate.   The detectives interviewed Nance in Wyoming on June 8, 1991, and again in Barstow on September 27, 1991, the day Nance was arrested by Barstow Police Department Detective Andrew Frank Espinoza for failure to register as a sex offender under section 290.   Under circumstances which will be more fully described in the discussion section of this opinion, in the September 27, 1991, interview the officers used the “good guy/bad guy” technique with Thill acting as the “bad guy.”   After Nance waived his Miranda rights, and during an interview lasting approximately four hours in which the officers made some false statements about the evidence they possessed, Nance confessed in some detail that at the map stop he struck Al in the back of the head, put her into the camper, raped her while she was alive, and might have leaned on her throat with his forearm.   Nance denied undressing Al, admitting only to taking off her panties.   Nance stated that Al must have died from his hitting her in the back of the head, but he really did not know how she died.   He stated he “probably could” have strangled her by a choke hold, but he “can't say” because it had been so long and he did not remember having his hand around her throat.   Nance stated he kept Al's body wrapped in a blanket in the camper for two days before driving to an unknown location and dumping her still-clothed body.



 Nance contends his warrantless arrest was invalid because the arresting officer did not have reasonable cause to believe Nance committed a misdemeanor offense in his presence.   Nance's pretrial motion to suppress his confession under section 1538.5 was made on this ground and the grounds the offense was not actually committed in the arresting officer's presence and it was a pretextual arrest.   At the section 1538.5 motion, Detective Hatfield testified and it was stipulated the court could consider the transcript of the preliminary hearing in which the arresting officer testified.

Nance's arrest September 27, 1991, by Barstow Police Detective Espinoza was for the misdemeanor offense of violating the sex offender registration requirement of section 290, which requires registration with the local law enforcement agency of persons convicted of designated sex offenses “within 14 days of coming into any county, city, or city and county in which he or she temporarily resides or is domiciled for that length of time.”

Section 836 provides in pertinent part:

“(a) A peace officer ․ without a warrant, may arrest a person whenever ․:

“(1) The officer has reasonable cause to believe that the person to be arrested has committed a public offense in the officer's presence.”

In October 1990, Detective Hatfield conducted a computer search through the California driver's license system in order to locate the residence of Nance.   Hatfield learned Nance had both a street number and Post Office box address in Barstow, as well as a utility trailer registered to him with an address in Barstow.   Hatfield also learned Nance had traffic tickets issued in the Barstow area as recently as 1989.   In May 1991, Hatfield contacted Detective Espinoza and told him he needed to locate Nance in an attempt to talk to him regarding a homicide investigation.   Hatfield asked, if there was a showing that Nance was in violation of section 290, that Espinoza arrest him and notify Hatfield if he does arrest Nance.   Hatfield wanted Nance in custody because he was having a difficult time locating him, with Nance not being where he told the officers he would be.   Hatfield told Espinoza in May that Nance was possibly residing in the Downtown Motel in Barstow, and he gave Espinoza descriptions of Nance and his car.   Acting on Hatfield's informing him Nance had been convicted of a sex offense requiring registration, Espinoza confirmed from police records that Nance had not registered under section 290.   Espinoza started looking for Nance without success.   However, Espinoza went to the Downtown Motel and confirmed Nance had been there for several days but had checked out and was possibly going to Boron, California or Wyoming.   Espinoza gave this information to Hatfield.

Before going to Wyoming, Hatfield and Thill went to Barstow and found out Nance had an active Post Office box where he received a subsistence check the third of each month.   On June 8, 1991, Hatfield and Thill interviewed Nance in Wyoming and scheduled a further interview with Nance for October 1, 1991.   When the detectives returned to San Diego, Hatfield contacted the Downtown Motel in Barstow and, knowing from the Wyoming conversation that Nance was going to return to Barstow, told the managers he wanted to talk to Nance and asked that he be notified when Nance arrived.

On August 21, 1991, Hatfield contacted Espinoza and told him he had information that Nance was residing at the Downtown Motel in Barstow.   Espinoza went to the motel and saw Nance's car.   He maintained surveillance on Nance's car until the night of August 26, 1991, when he lost sight of it.   Espinoza found out Nance had checked out of the motel and told Hatfield.   The next day, August 27, 1991, Hatfield and Thill went to Barstow where they met Espinoza and the three officers went to the post office, establishing that Nance's Barstow Post Office box was still active.   In August, Espinoza made a second check of the police records and rap sheet for Nance to again confirm he was a sex offender who had not registered in Barstow.

On September 6, 1991, Hatfield sent a “ruse” letter to Nance at his post office box asking him to call Hatfield collect about returning some of his property.   Nance responded and told Hatfield he was staying in the Downtown Motel in Barstow.   Hatfield was told by the motel that Nance was not checked in.   On September 12, 1991, Espinoza saw Nance's car leaving the Downtown Motel with Nance driving.

On September 16, 1991, Hatfield sent another letter to Nance at his Barstow Post Office box, and Nance again responded by telephone, once more saying he was staying at the Downtown Motel.   Hatfield and Nance made an appointment for an interview sometime in October.   Hatfield reported this conversation to Espinoza right after he talked to Nance.   Hatfield relayed to Espinoza all the information he had gathered about Nance's connection with Barstow.

On September 27, 1991, on a tip from Hatfield that Nance might be living in Barstow, Espinoza again found Nance's car at the motel.   When Nance drove away, Espinoza followed him to a local convenience store where he arrested Nance for violating section 290.

 These are the historical facts to which, on review, we apply the deferential substantial evidence standard.  (People v. Williams (1988) 45 Cal.3d 1268, 1301, 248 Cal.Rptr. 834, 756 P.2d 221.)   The testimony of Hatfield and Espinoza amply supports these facts, and Nance does not contend otherwise.   In ruling on the section 1538.5 suppression motion, we independently determine the applicable rule of law and apply that law to the facts in order to determine whether the rule of law as applied to the established facts is or is not violated.  (Ibid.)  Exercising this function of independent review, we conclude the arrest was proper for the misdemeanor offense, committed in the officer's presence, of not registering under section 290.

From the above described set of facts showing Nance's close living contacts with Barstow dating back to 1989 with his traffic tickets in the area and continuous use of a Barstow Post Office box that was still active and being used by him less than two weeks before his arrest on September 27, 1991, and from his confirmed presence there in August and September 1991 after his return from Wyoming as he had told the detectives from San Diego he intended, it was completely reasonable for Espinoza to believe on September 27 that Nance “temporarily resides” in Barstow as section 290 provides.   From these facts and Espinoza's August 1991 records check, his second check in three months, determining Nance had not registered with the Barstow police under section 290, it also was reasonable for Espinoza to believe on September 27, 1991, that Nance had not registered “within 14 days of coming into” Barstow where he at least temporarily resided “for that length of time.”  (§ 290.)

Accordingly, when Espinoza saw Nance in Barstow driving away from the Downtown Motel and stopping at a convenience store there on September 27, 1991, he had probable cause to believe Nance had committed in his presence the misdemeanor offense of failing to register under section 290.  (§ 836, subd. (a)(1);  see Music v. Department of Motor Vehicles (1990) 221 Cal.App.3d 841, 847–848, 270 Cal.Rptr. 692.)

 Thus, there is no validity to Nance's argument that his motion to suppress the confession should have been granted because it was uncovered as a result of an illegal arrest.   We note in this connection that federal constitutional law which California follows exclusively in determining suppression motions based on violations of the Fourth Amendment (In re Lance W. (1985) 37 Cal.3d 873, 896, 210 Cal.Rptr. 631, 694 P.2d 744) does not require for a valid warrantless arrest that the offense be committed in the arresting officer's presence.  (Barry v. Fowler (9th Cir.1990) 902 F.2d 770, 772;  Street v. Surdyka (4th Cir.1974) 492 F.2d 368, 371–372;  People v. Trapane (1991) 1 Cal.App.4th Supp. 10, 12–14, 3 Cal.Rptr.2d 423.)   The federal standard is whether at the moment of the arrest the officer had probable cause, i.e., the facts and circumstances within the officer's knowledge of which the officer had reasonably trustworthy information were sufficient to warrant a prudent person in believing that the petitioner had committed or was committing an offense.  (Beck v. Ohio (1964) 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142.)   Here, as we have seen, there were ample reliable facts known to Espinoza concerning Nance's term of residence in Barstow and failure to register as required by section 290 to give Espinoza probable cause to arrest him for that offense under the federal standard.   Even if it were conceded the element of “presence” had not been established for a valid arrest under California law, the federal standard for purposes of the Fourth Amendment suppression motion was satisfied.   Thus, there is no ground to exclude the confession on the basis of the assumed invalidity of the arrest under California's “presence” requirement in section 836, subdivision (a)(1).



Nance contends the trial court erred prejudicially when it failed to instruct the jury that the victim had to be alive in order to convict him of rape.   There is no merit in the contention.

The court instructed the jury under CALJIC No. 10.00 concerning rape of a nonspouse with force or threats.7  The instruction does not contain express language telling the jury the victim must be alive at the time of the penetration.   However, the instruction does specify that the sexual intercourse must be “accomplished against such person's will,” which it defines as “without the consent of the female person.”

 Rape requires a live victim.  (People v. Kelly (1992) 1 Cal.4th 495, 524, 3 Cal.Rptr.2d 677, 822 P.2d 385.)   It has been observed:

“[S]ection 263 states that ‘[t]he essential guilt of rape consists in the outrage to the person and feelings of the [victim of the rape].8  Any sexual penetration, however slight, is sufficient to complete the crime.’   [Citations.]  It is manifest that the ‘feelings' of the [victim] cannot be offended nor does the victim suffer ‘outrage’ where [the victim] is dead when sexual penetration has occurred.   Thus it appears that a [victim] must be alive at the moment of penetration in order to support a conviction of rape under section 261.”  (People v. Stanworth (1974) 11 Cal.3d 588, 605, fn. 15, 114 Cal.Rptr. 250, 522 P.2d 1058.)

 Accordingly the rule is that, where there is evidence to support the theory that intercourse occurred after death, the court should instruct on the general principle of law that the victim must be alive when the penetration occurs in order to make a proper finding of rape.  (People v. Sellers (1988) 203 Cal.App.3d 1042, 1051, 250 Cal.Rptr. 345.)

 The evidence of rape derived almost exclusively from the statements in Nance's confession.   In his confession Nance said among other things that when he hit Al on the back of the head, she was not knocked down.   When he put her in the camper and had sex with her, Al was alive.   During the rape Al asked him to stop.   Nance affirmatively stated that Al was alive when he quit having sex with her and she died after he had wrapped her in a blanket.   After he had sex with her, Nance felt Al's pulse to determine she was dead.   The scratches observed on Nance's arms can be viewed as an indication Al was alive during the rape.

The fact that Al's body was found several days later in a state of decomposition indicating she had died about five days earlier does not raise an inference she was dead at the time of the sexual intercourse.   Nor is it significant or determinative that the court, consistently with Nance's confession and the condition in which Al's body was found, instructed that Al must have been alive at the time of the penetration by a foreign object, i.e., the panties and brassiere.   Nance denied any such conduct, admitting only that he took off Al's panties and put them down on the side of her.   He also admitted that two or three days later he “dumped” Al's body at a site roughly fitting the description of the place where her body was found.   These points of Nance's confession combined with the feature of panties and brassiere stuffed into the rectum raised a strong inference the penetration by those items, the subject of the rape by foreign object charge, occurred after death.   Thus, it was necessary for the court to give the instruction for the rape by foreign object count that the victim must have been alive.

By comparison, the facts in Nance's confession and the state of the body raise no inference the sexual intercourse occurred after Al had died.   It follows, since there was no evidence supporting the theory the victim was dead during the sexual intercourse, there was no legal requirement the “alive during penetration” instruction be given for purposes of the rape count.


Conceding that we are bound by Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937 to follow the California Supreme Court decisions upholding the constitutionality of the CALJIC No. 2.90 definition of “reasonable doubt,” 9 Nance nevertheless raises the issue in order to preserve his rights in light of the United States Supreme Court's having granted certiorari on the issue in Sandoval v. California 509 U.S. 954, 114 S.Ct. 40, 125 L.Ed.2d 789.   Under Auto Equity Sales and the cited California Supreme Court cases, we reject Nance's contention.


Judgment affirmed.


FN2. All statutory references are to the Penal Code unless otherwise specified..  FN2. All statutory references are to the Penal Code unless otherwise specified.

3.   Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

FOOTNOTE.   See footnote 1, ante.

7.   The version of CALJIC No. 10.00 given by the court reads:“Defendant is accused in count two of the amended information of having committed the crime of rape, a violation of section 261(2) of the Penal Code.“Every person who engages in an act of sexual intercourse with a female person who is not the spouse of the perpetrator, accomplished against such person's will by means of force, violence, or fear of immediate and unlawful bodily injury to such person is guilty of the crime of rape in violation of Penal Code section 261(2).“In order to prove such crime, each of the following elements must be proved:“1. A male and female person engaged in an act of sexual intercourse;“2. The two persons were not married to each other;“3. The act of intercourse was against the will of the female person;  and“4. Such act was accomplished by means of force, violence, or fear of immediate unlawful bodily injury to such person.“Any sexual penetration, however slight, constitutes engaging in an act of sexual intercourse.   Proof of ejaculation is not required.“ ‘Against such person's will’ means without the consent of the female person.”

8.   We editorially change the text of the quotation to reflect the 1979 change in section 263 removing the reference to “female” only and substituting the more widely applicable term “victim.”  (Stats.1979, ch. 994, § 3.)

9.   See People v. Sims (1993) 5 Cal.4th 405, 456–457, 20 Cal.Rptr.2d 537, 853 P.2d 992;  People v. Noguera (1992) 4 Cal.4th 599, 634, 15 Cal.Rptr.2d 400, 842 P.2d 1160;  People v. Sandoval (1992) 4 Cal.4th 155, 186, 14 Cal.Rptr.2d 342, 841 P.2d 862;  People v. Johnson (1992) 3 Cal.4th 1183, 1234–1235, 14 Cal.Rptr.2d 702, 842 P.2d 1;  People v. Jennings (1991) 53 Cal.3d 334, 385–386, 279 Cal.Rptr. 780, 807 P.2d 1009;  compare People v. Brigham (1979) 25 Cal.3d 283, 292–293, 157 Cal.Rptr. 905, 599 P.2d 100, conc. opn. of Mosk, J.)

TODD, Acting Presiding Justice.