PEOPLE v. GUZMAN (1980)

After unsuccessful motions to suppress evidence (Pen.Code, § 1538.5) and to dismiss the information (Pen.Code, § 995), defendant Julio Ayala Guzman pleaded guilty to one count of forcible rape (Pen.Code, § 261, subd. (3)).¹ Criminal proceedings were then suspended and a Mentally Disordered Sex Offender examination ordered. (Welf. & Inst.Code, § 6300 as amended et seq.) Guzman was found to be nonamenable to treatment. Criminal proceedings were resumed and the court sentenced Guzman to prison for the upper term, eight years, with credit for pretrial custody and good time/work time.

CONTENTION

Guzman's appeal asserts that the trial court's finding his original detention was unlawful, required suppression of all evidence discovered by exploitation of the illegal detention including observations made by the detaining officer as well as the station house lineup and the in-court (preliminary hearing) identifications of Guzman by the victim. Guzman also urges sentencing error in denial of probation and imposition of the upper prison term.

FACTS

On February 11, 1979, at about 9 p. m., 15-year-old Jennifer C. was walking home alone—from a bubble gum purchase—in the Hillcrest neighborhood of San Diego. Guzman approached Jennifer on the darkened street, grasped her by the neck, held a knife to her stomach, and told her not to scream but to cooperate and she would not get hurt. Guzman forced Jennifer behind an apartment building and committed an act of oral copulation on her. Guzman was disturbed by light shining from a nearby apartment, so he compelled Jennifer, again at knifepoint, into an underground parking area. There he forcibly raped her and subjected her to a variety of sexual indignities.

Once freed, Jennifer called the police and gave a detailed description of her assailant. The police bulletin described the wrongdoer as a 27-year-old Mexican male with a large jagged “weird shape” scar on his right forehead, mustache, approximately five feet, eight inches, 185 pounds, pot belly and wearing a floral print or similar type shirt.

Four days later—a Thursday evening at about 7 p. m.—San Diego Police Officers Steven Chelby and Sue Nasif read this bulletin before commencing their patrol duties in the Hillcrest area. These two officers had been specially assigned to this neighborhood by reason of the fact that four women (not including Jennifer C.) had been sexually assaulted within the preceding two months in this precise area. Each of the four victims had been accosted on the street between 7 and 9 p. m. on a Wednesday, Thursday or Friday night by an 18-to 20-year-old black male with short afro and clean shaven face of average height and weight, wearing dark clothing and carrying a knife. These officers on four previous nights had stopped “8 to 10” males based upon these factors, among others: a lone male pedestrian, in area of sparse foot traffic, age, race, day of week and time of night, proximity to the area of previous attacks and the demographic character of the Hillcrest area (90 to 97 percent Caucasian). Officer Chelby agreed that being a nonwhite was a factor in the singling out, contacting young males from among the sparse pedestrian traffic in their search for the “pill hill rapist.”

Two hours after reading the Jennifer C. bulletin, the officers sighted Guzman. It was 9 p. m.; he was walking alone in the immediate vicinity where the previous four rapes by the black man and the crimes against Jennifer C. had occurred. The man appeared young and of the same general physical build as the “pill hill rapist.” Officer Chelby observed Guzman to be dark complected and first thought him to be a black man. Chelby drove the police vehicle to the curb, honked his horn and motioned to Guzman to approach the car. Guzman turned, faced the officers and walked toward the police car. Upon observing Guzman “face to face,” Chelby “almost immediately” noted not a black man, but a male Mexican with a large jagged scar on his right forehead. He appeared five feet, eight inches tall, 180 to 185 pounds, mustached and wore clothing matching Jennifer C.'s description of the rapist. This view triggered Chelby's recollection of the bulletin read just two hours before. Guzman had no identification, whereupon the officers requested him to “ride downtown” to the police headquarters to be fingerprinted and photographed. Guzman agreed. Once at the police station, Chelby reexamined the Jennifer C. bulletin, confirmed his recollection and promptly arrested Guzman.

From the moment (the “face to face” observation) Officer Chelby recognized Guzman as the individual described in the Jennifer C. report, “he would not have been free to go; no.” He intended to restrain him.

DISCUSSION I

We dispose first of this threshold matter. Guzman contends the People may not on this appeal question the correctness of the trial court's ruling Guzman's detention was illegal. This contention is resolved by Penal Code section 1252 which declares in pertinent part:

“On an appeal by a defendant, the appellate court shall, in addition to the issues raised by the defendant, consider and pass upon all rulings of the trial court adverse to the State which it may be requested to pass upon by the Attorney General.”

In People v. Braeseke, 25 Cal.3d 691, 701, 159 Cal.Rptr. 684, 690, 602 P.2d 384, 390, the Supreme Court interpreted this language to mean that on appeal by a defendant, the People may “obtain review of allegedly erroneous rulings by the trial court in order to secure an affirmance of the judgment ․” (Fn. omitted.)

Our determination the order to be reviewable does not, however, change these firm rules governing appellate court procedure: This court is bound by the substantial evidence standard of review. (People v. Rios, 16 Cal.3d 351, 357, 128 Cal.Rptr. 5, 546 P.2d 93.) Secondly, “the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor the exercise of that power, and the trial court's findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence.” (People v. Lawler, 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 15, 507 P.2d 621, 623.)

II

Guzman's contention, stripped of all verbiage, is that these police officers had no lawful right to look at him, to drive their squad car to the curbside, to honk the horn and motion to him to come to the car. It is argued that the officers' subjective intent to stop and question young black males in the area at this time of night made this an “indiscriminate street stop,” a promiscuous bothering of citizens,” a “flagrant disregard of established constitutional principles.” But before being swept away by the rhetoric, we need to first examine the facts and the law to ascertain whether at any step in this complex rapidly unfolding scenario the officers violated any right of Guzman. The analysis must begin with that significant legal distinction to be made between “contact” by a police officer with any citizen on the street and a temporary detention or “seizure” of the person.

The Fourth Amendment to the United States Constitution requires that searches and seizures be based upon “objective justification,” and governs all seizures of the person even those that involve only a brief detention short of traditional arrest. (Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676; Terry v. State of Ohio, 392 U.S. 1, 16-19, 88 S.Ct. 1868, 1877-1878, 20 L.Ed.2d 839; United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497.)

However, a temporary detention only remotely resembles a police-citizen contact—only as drisk resembles mist.² And it is the temporary detention, not a mere “contact” that invokes the Fourth Amendment protections.

This follows for not all personal contacts, encounters, relationships, interviews, questionings, meetings between policemen and citizens involve a “seizure of the person.”

Justice White's observation (concurring opinion) in Terry v. Ohio, supra, 392 U.S. 1, 34, 88 S.Ct. 1868, 1886, 20 L.Ed.2d 839, “[t]here is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets” has been echoed and re-echoed by the courts of this state. (People v. King, 72 Cal.App.3d 346, 349, 139 Cal.Rptr. 926; People v. Larkin, 52 Cal.App.3d 346, 349, 125 Cal.Rptr. 137; People v. Moore, 69 Cal.2d 674, 682, 72 Cal.Rptr. 800, 446 P.2d 800; People v. Manis, supra, 268 Cal.App.2d 653, 662-663, 74 Cal.Rptr. 423; People v. Superior Court (Backey), 85 Cal.App.3d 1020, 1026, 149 Cal. Rptr. 349.)

And most recently these views were approved again in United States v. Mendenhall, supra, 446 U.S. 544, _, 100 S.Ct. 1870, 1876-1877, 64 L.Ed.2d 497, where the court stated:

“The distinction between an intrusion amounting to a ‘seizure’ of the person and an encounter that intrudes upon no constitutionally protected interest is illustrated by the facts of Terry v. Ohio, supra, which the Court recounted as follows: ‘Officer McFadden approached the three men, identified himself as a police officer and asked for their names… When the men ‘mumbled something’ in response to his inquiries, Officer McFadden grabbed petitioner Terry, spun him around so that they were facing the other two, with Terry between McFadden and the others, and patted down the outside of his clothing.' Id., at 7 [88 S.Ct. at 1872]. Obviously the officer ‘seized’ Terry and subjected him to a ‘search’ when he took hold of him, spun him around, and patted down the outer surfaces of his clothing, id., at 19 [88 S.Ct. at 1878]. What was not determined in that case, however, was that a seizure had taken place before the officer physically restrained Terry for purposes of searching his person for weapons. The Court ‘assume[d] that up to that point no intrusion upon constitutionally protected rights had occurred.’ Id., at 19, n. 16 [88 S.Ct. at 1879 n. 16]. The Court's assumption appears entirely correct in view of the fact, noted in the concurring opinion of Mr. Justice White, that ‘[t] here is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the street.’ 392 U.S. at 34 [88 S.Ct. at 1886]. Police officers enjoy ‘the liberty (again, possessed by every citizen) to address questions to other persons,’ id., at 31, 32-33 [88 S.Ct. at 1885-1886] (Harlan, J., concurring), although ‘ordinarily the person addressed has an equal right to ignore his interrogator and walk away.’ Ibid.

Similarly, the Court in Sibron v. New York, 392 U.S. 40 [88 S.Ct. 1889, 20 L.Ed.2d 917], a case decided the same day as Terry v. Ohio, indicated that not every encounter between a police officer and a citizen is an intrusion requiring an objective justification. In that case, a police officer, before conducting what was later found to have been an unlawful search, approached Sibron in a restaurant and told him to come outside, which Sibron did. The Court had no occasion to decide whether there was a ‘seizure’ of Sibron inside the restaurant antecedent to the seizure that accompanied the search. The record was ‘barren of any indication whether Sibron accompanied [the officer] outside in submission to a show of force which left him no choice, or whether he went voluntarily in a spirit of apparent cooperation with the officer's investigation.’ Id., at 63 [88 S.Ct. at 1903] (emphasis added). Plainly, in the latter event, there was no seizure until the police officer in some way demonstrably curtailed Sibron's liberty.

We adhere to the view that a person is ‘seized’ only when by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards. The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but ‘to prevent arbitrary and oppressive interferences by enforcement officials with the privacy and personal security of individuals.’ United States v. Martinez-Fuerte, 428 U.S. 543, 554 [96 S.Ct. 3074, 3081, 49 L.Ed.2d 1116]. As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification.”3

Thus only where there is a true temporary detention where freedom of movement is restrained is the “objective justification” required and the rule of In re Tony C. (21 Cal.3d 888, 892-896, 148 Cal.Rptr. 366, 582 P.2d 957) and People v. Bower (24 Cal.3d 638, 643, 156 Cal.Rptr. 856, 597 P.2d 115) applicable.

Even though these officers may have viewed the lone dark-skinned male at this hour and location as a possible rape suspect and intended to detain and question him, yet until this subjective thinking process was objectified in some fashion—by force or threat of force actually imposed—the Fourth Amendment protections are not triggered.

The Mendenhall court made this further significant observation: “[T]he subjective intention of the DEA agent … to detain the respondent, had she attempted to leave, is irrelevant except insofar as that may have been conveyed to the respondent.” (United States v. Mendenhall, supra, 100 S.Ct. 1870, 1877, fn. 6.) And “[o]nly when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards.” (Id., at p. 1877.)

The question in each case remains, of course, as to “where to draw the line” in the world of hard discrete fact. To equate mere looking at or speaking to a possible candidate for “seizure,” or the driving of a police car to the curb adjacent to where a lone man is walking, or the honking of a horn to attract a person's attention, or the motioning to a stranger requesting him to come to the curb, without more, with an “arbitrary and oppressive interference with the privacy and personal security of the individual,” is mere sophistry. The Fourth Amendment prohibits “unreasonable seizures,” not eye contacts and greetings. To characterize such minimal, fleeting, gossamer-like contacts as involved in a simple accosting or haling of a person on the street as a detention or “seizure” would impose unrealistic, unreasonable if not impossible restrictions on law enforcement officers. (Haynes v. State of Washington, 373 U.S. 503, 515, 83 S.Ct. 1336, 1344, 10 L.Ed.2d 513; United States v. Mendenhall, supra, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497.)

We conclude that a person has been “seized” within the ambit of the Fourth Amendment prohibition only where in view of all of the circumstances surrounding the event, a reasonable person would believe he was not free to leave. On the facts of this case no seizure of Guzman took place until after the officers had looked upon approaching Guzman's face and form and saw a Mexican male matching in marked detail Jennifer C.'s description of her assailant. At this moment Officer Chelby correctly concluded Guzman was not free to go for Officer Chelby had more than just grounds for detention; such facts as these would “lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a [specific] crime.” (People v. Ingle, 53 Cal.2d 407, 412, 2 Cal.Rptr. 14, 17, 348 P.2d 577, 580.) In short, these officers from the moment of the full face observation of Guzman had not only a factual basis for detention but for arrest. That the officers did not in fact arrest Guzman until after they had checked the bulletin at the station house does not denigrate one whit from the probable cause to arrest coming into existence at that moment. In this record we find no police intrusion on Guzman's privacy or security offensive to the Fourth Amendment to the United States Constitution.

If we make the fanciful assumption there was in fact an illegal detention, yet the victim's identifications of Guzman at the station house lineup and preliminary hearing cannot be suppressed. They were not the product of exploitation of an illegal detention as in People v. Teresinski, 26 Cal.3d 457, 162 Cal.Rptr. 44, 605 P.2d 874. Not only is there no poisonous tree, no poisoned fruit to be suppressed, but it was “pure happenstance” that these officers encountered, recognized Guzman, instead of the black man—the “pill hill rapist”—they were seeking. (People v. McInnis, 6 Cal.3d 821, 825, 100 Cal.Rptr. 618, 494 P.2d 690.)

III

Guzman also complains of sentencing error. He asserts the trial court considered improper factors in denying probation and imposing the upper term. Guzman plead guilty to rape (Pen.Code, § 261, subd. (3)). He was sentenced pursuant to Penal Code section 1203.065, subdivision (a), which provides in part: “[P]robation shall not be granted to … any person convicted of violating subdivision … (3) of Section 261 ․” Denial of probation was compelled by this statute. (People v. Tanner, 24 Cal.3d 514, 520, 156 Cal.Rptr. 450, 596 P.2d 328.)

Guzman next argues it was error for the trial court to consider “bodily harm” as an aggravating factor since there was no physical harm beyond the act of rape itself. (People v. Caudillo, 21 Cal.3d 562, 587, 146 Cal.Rptr. 859, 580 P.2d 274.) It is true Guzman did not inflict bodily injury upon Jennifer C. except that necessary to the act of rape, therefore California Rules of court rule 414, subdivision (c)(4), was not applicable.

However, a host of aggravating factors were present. Guzman's use of a knife, holding it to Jennifer's stomach in threatening the child certainly constituted a “threat of great bodily injury” within rule 421, subdivision (a)(1), and therefore a properly considered aggravating factor.

Guzman's argument that a 15-year-old slight female walking in a darkened neighborhood is not “particularly vulnerable” to the rapacious assault by a 185 pound knife-armed male is without merit. This victim was “defenseless,” “unguarded,” “unprotected,” “accessible,” and “assailable” in every sense of these words. She was “particularly vulnerable.” (People v. Smith, 94 Cal.App.3d 433, 436, 156 Cal.Rptr. 502.) The trial court also properly considered Guzman's performance on parole. He had been previously convicted for a rape offense in 1974 and arrested for burglary-rape in 1972, four months after his release on parole. Although he was not convicted, his parole was violated and he was returned to prison for the earlier offense. The court properly considered his unsatisfactory performance on parole. (Rule 414, subd. (d)(2).)

The court also correctly considered the danger to others if Guzman was not in prison as authorized by rule 414, subdivision (b), and the fact that Guzman was armed with, used a weapon in assaulting Jennifer (rule 414, subd. (c)(3)). (People v. Cortez, 103 Cal.App.3d 491, 496, 163 Cal.Rptr. 1; People v. Guevara, 88 Cal.App.3d 86, 92-94, 151 Cal.Rptr. 511.)

Thus, a wealth of factors support the imposition of the upper term; no factors appear in mitigation. The use of a weapon, the vicious, inhumane indignities inflicted upon a 15-year-old, Guzman's unsatisfactory performance while on parole, the danger to the community when Guzman is at large, all made the upper term inevitable on any rational scale of sanctions. In such factual circumstance, the error was harmless, does not require remand for re-sentencing. (People v. Watson, 46 Cal.2d 818, 299 P.2d 243; People v. Dozier, 90 Cal.App.3d 174, 178, 153 Cal.Rptr. 53.)

Judgment affirmed.

FOOTNOTES

1.  Pursuant to the plea bargain, a forcible oral copulation charge (Pen.Code, § 288a, subd. (c)) was dismissed and a weapons use allegation (Pen.Code, § 12022, subd. (b)) stricken.

2.  (Cf., People v. Manis, 268 Cal.App.2d 653, 667, 74 Cal.Rptr. 423.)

3.  Whether this language is dicta or the view of a majority of the court is not clear. (See conc. opn. of Powell, J., fn. 1, p. 1880, where three concurring justices “do not necessarily disagree with the views expressed ․”)

STANIFORTH, Associate Justice.

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