PEOPLE v. SOSA (1981)

The People petition for review (Pen. Code, s 1538.5, subd. (o)) of the order of the trial court suppressing the statements and anticipated testimony¹ of witnesses Gonzales, Lara and Maddox in the trial of real parties in interest (defendants) for conspiracy to murder (Pen. Code, s 182, subd. 1) and the murder (Pen. Code, s 187) of Ellen Delia. We issued an alternative writ of mandate.

We affirm the decision of the trial court.²

The People concede that witness Gonzales was arrested and jailed and his home searched pursuant to a search warrant wholly founded upon the illegally obtained statements of Armando Varela. They argue initially that the connection between Gonzales'³ statements and anticipated testimony and the illegal conduct is sufficiently attenuated to dissipate the taint of the police misconduct. (Wong Sun v. United States (1963) 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; United States v. Ceccolini (1978) 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268.) On rehearing they argue that the trial court erred in suppressing Gonzales' anticipated testimony. Alternatively, they seek an opportunity to claim that an act of attenuation occurred subsequent to the exhaustion of the Penal Code section 1538.5 proceedings.

The trial court, following hearings conducted over a year and one-half and occupying hundreds of pages of transcript, held that there was no attenuation of the taint arising from the police misconduct by virtue of the events put in issue by the parties culminating in the claimed decision by Gonzales to cooperate with law enforcement agencies.⁴ We conclude, adhering to the limited standard of appellate review of a trial court decision, that there is substantial evidence in the voluminous record to support the trial court's order. We also conclude that the People have exhausted their right to litigate the issue of attenuation. Accordingly, we deny the petition and discharge the alternative writ.

FACTS

On February 18, 1977, the body of Ellen Delia was found near Sacramento Metropolitan Airport; she had been shot the previous evening.

On February 20, 1977, Armando Varela and defendant Sosa were arrested in Monterey Park, California, for an alleged traffic violation and the automobile in which they were traveling, registered to defendant Delia, the estranged husband of Ellen Delia, was impounded and searched. The car was stopped by the police in front of defendant Delia's residence.

The People concede that the traffic stop was a subterfuge to conceal a surveillance of Delia's residence in order to obtain evidence that would incriminate him in suspected Mexican Mafia-connected murders.

After the arrest, Varela and Sosa were taken to the Monterey Park police station, at which was located the offices of the Prison Gang Task Force, a loosely organized group of state and local police officers whose primary purpose was to investigate the activities of prison gangs including the Mexican Mafia.

One of the subjects of the task force investigation was the Robert Lewis murder. Sergeant John Helvin, a member of the Major Crimes Section of the Los Angeles Police Department, was also investigating the Robert Lewis murder. Helvin had attended a meeting of several law enforcement agencies at the task force headquarters on February 4, 1977, to discuss several homicides, including the Lewis murder.

When Varela and Sosa were arrested on February 20, Helvin was notified and went to the Monterey Park Police Department. The next day he participated in the impound search of the vehicle occupied by Sosa and Varela. Over the next several days Varela was questioned by members of the task force. Helvin was present on February 21 during the questioning. On the 25th, Varela turned state's evidence. Thereafter, Helvin questioned him for several hours each day on February 26, 27 and 28. On March 1, Helvin, together with another officer, took Varela on a drive to identify various residential locations.

On March 2 Helvin prepared an affidavit for Varela's signature based upon his conversations with Varela. Varela signed it and on the basis of the affidavit a search warrant was prepared authorizing a search of the house of Edward Gonzales in El Monte, California.

The trial court found that Varela's statements were unlawfully obtained by exploitation of his illegal arrest and the People concede the evidence supports the finding. The People do not contest the further finding that “(a)s a direct result of Varela's turning State's evidence, a search warrant was issued for the search of (the) Gonzale(s) residence (and that) (t)he sole (source) for the information for this search warrant was received from Varela.”

The search warrant was served at the Gonzales residence at 7:05 a. m. on March 3, 1977. Led by Officer Helvin, seven policemen, including members of the Prison Gang Task Force, surrounded the residence. After announcing his presence and receiving no response, Helvin kicked down the front door and the police rushed inside. Investigator Alan Price of the Monterey Park Police Department testified that once they were inside Gonzales' wife was “terrified” and their children were “scared, screaming, crying.”

Sergeant Helvin testified that he saw Gonzales heading for the bathroom carrying a fist full of balloons which Helvin assumed contained narcotics. Helvin then handcuffed Gonzales and arrested him without a warrant. Neither at the time of his arrest nor at any time during the first 30 hours thereafter was Gonzales read his Miranda rights.

Following his arrest, Gonzales was transported to the Los Angeles Police Department by Officer Price and booked into the city jail. During the ride to the police department, Price made comments to Gonzales which are discussed below.

Before leaving the Gonzales residence, Sergeant Helvin left his business card with Mrs. Gonzales, a practice which he testified was routine. On returning to the station, Helvin attempted to elicit statements form Gonzales without advising him of his Miranda rights as Gonzales was being booked. While in jail on the day of his arrest, Gonzales spoke with his wife by telephone. There is no information in the record regarding the subject matter discussed during his phone call.

Between 1 and 1:30 p. m. the next day, March 4, 1977, a woman identifying herself as Mrs. Gonzales called Helvin to tell him that Gonzales wished to speak to him. Helvin immediately went to see Gonzales and, for the first time in the 30 hours since his arrest, advised him of his Miranda rights. Helvin testified that thereafter Gonzales waived his Fifth Amendment rights. Helvin then removed Gonzales to an interview room where Gonzales made statements implicating himself and others in various crimes and agreed to testify for the prosecution. During the course of his interview with Sergeant Helvin, Gonzales told the officer that he was currently being represented by an attorney in Bakersfield in connection with homicide charges against him. Out of the presence of Gonzales, Sergeant Helvin called the attorney and informed him of his client's situation. Though Gonzales was subsequently permitted to speak to his attorney by telephone, the two never physically met while Gonzales was in custody.⁵

The Gonzales admissions obtained by Helvin and Gonzales' decision to cooperate with law enforcement agencies are the subject of this review.

DISCUSSION

I

The People concede that Varela's statements were unlawfully obtained by exploitation of his illegal arrest and that his statements were the sole ground for issuance of the warrant to search Edward Gonzales' house. They do not concede that the search of Gonzales' house and his consequent arrest were illegal but that conclusion is compelled by the fact that the warrant was solely the product of Varela's statements. (See People v. Edwards (1969) 71 Cal.2d 1096, 1106, 80 Cal.Rptr. 633, 458 P.2d 713.)

Conceding illegal conduct, the People argue that Gonzales' admissions and his decision to cooperate with law enforcement agencies were not the product of illegal conduct, but, on the contrary, were the product of an independent act of free will.

The issue here is one of legal causation; whether the evidence which the People seek to use was the “fruit of the poisonous tree.” (Wong Sun v. United States, supra, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.) “In the typical ‘fruit of the poisonous tree’ case, ... the challenged evidence was acquired by the police after some initial Fourth Amendment violation, and the question before the court is whether the chain of causation proceeding from the unlawful conduct has become so attenuated or has been interrupted by some intervening circumstance so as to remove the ‘taint’ imposed upon that evidence by the original illegality. Thus most cases begin with the premise that the challenged evidence is in some sense the product of illegal governmental activity.” (United States v. Crews (1980) 445 U.S. 463, 471, 100 S.Ct. 1244, 1249, 63 L.Ed.2d 537, 545.)

“That degree of ‘attenuation’ which suffices to remove the taint from evidence obtained directly as a result of unlawful police conduct requires at least an intervening independent act by the defendant or a third party which breaks the causal chain linking the illegality and evidence in such a way that the evidence is not in fact obtained ‘by exploitation of that illegality.’ Consent by the defendant, if ‘sufficiently an act of free will to purge the primary taint of the unlawful (arrest)’ (Wong Sun v. United States, supra, 371 U.S. at p. 486 (83 S.Ct. at p. 416, 9 L.Ed.2d 454)), may produce the requisite degree of ‘attenuation.’ ” (People v. Sesslin (1968) 68 Cal.2d 418, 428, 67 Cal.Rptr. 409, 439 P.2d 321; see also Brown v. Illinois (1975) 422 U.S. 590, 603, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416.)

Preliminarily, we observe that two principles of law condition our review of the trial court's order. First, the People bear the burden of proving a break in the causative chain from the illegal arrest and search to the admissions and decision to cooperate here challenged as the product of the illegal conduct. (People v. DeVaughn (1977) 18 Cal.3d 889, 898-899, 135 Cal.Rptr. 786, 558 P.2d 872; People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 411, 118 Cal.Rptr. 617, 530 P.2d 585; People v. Johnson (1969) 70 Cal.2d 541, 554-555, 75 Cal.Rptr. 401, 450 P.2d 865; People v. Sesslin, supra, 68 Cal.2d at p. 428, 67 Cal.Rptr. 409, 439 P.2d 321; Brown v. Illinois, supra, 422 U.S. at p. 604, 95 S.Ct. at p. 2262; see United States v. Ceccolini, supra, 435 U.S. at p. 272, 98 S.Ct. at p. 1058.)

Second, we are mindful of the limited role of an appellate court in reviewing the determinations of the trial court as a trier of fact in section 1538.5 proceedings. (People v. Rios (1976) 16 Cal.3d 351, 357, 128 Cal.Rptr. 5, 546 P.2d 293; People v. Superior Court (Keithley), supra, 13 Cal.3d at p. 410, 118 Cal.Rptr. 617, 530 P.2d 585; People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621; People v. West (1970) 3 Cal.3d 595, 602, 91 Cal.Rptr. 385, 477 P.2d 409; People v. Heard (1968) 266 Cal.App.2d 747, 749, 72 Cal.Rptr. 374.) In such proceedings, as has been consistently noted, “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. Rios, supra, 16 Cal.3d at p. 357, 128 Cal.Rptr. 5, 546 P.2d 293; People v. Lawler, supra, 9 Cal.3d at p. 160, 107 Cal.Rptr. 13, 507 P.2d 621; see People v. Superior Court (Keithley), supra, 13 Cal.3d at p. 410, 118 Cal.Rptr. 617, 530 P.2d 585.)

Indeed, as the United States Supreme Court noted in Brown v. Illinois, supra, 422 U.S. at p. 604, fn. 10, 95 S.Ct. at p. 2262, fn. 10, the entire approach to the question of attenuation an approach ratified by the DeVaughn court, 18 Cal.3d 889, 135 Cal.Rptr. 786, 558 P.2d 872 “relies heavily, ... on the ‘learning, good sense, fairness and courage of ... trial judges.’ (Nardone v. United States ((1939)) 308 U.S. 338, 342, 60 S.Ct. 266, 268, 84 L.Ed. 307), ...”

As we have noted, the prosecution bears the burden of proving attenuation, i. e., of proving “a break in the causative chain.” (People v. Johnson, supra, 70 Cal.2d at p. 548, 75 Cal.Rptr. 401, 450 P.2d 865.) If the evidence offered by the People in support of the claim of attenuation consists of testimony which is disbelieved by the trier of fact, the claim must fail.

The sole evidence of Gonzales' admissions and decision to cooperate came from the testimony of Officer Helvin. Gonzales, though available as a witness and the recipient of a grant of immunity, was not called by the prosecution for reasons which remain unknown to this court, notwithstanding that it is the voluntariness of his admissions and decision to cooperate which is the heart of the People's argument. Accordingly, the Helvin testimony is indispensable to show that Gonzales initiated the communication with him, to show the giving of Miranda warnings and to establish the reasons for Gonzales' decision to cooperate.

Helvin had an intimate working relationship with the Prison Gang Task Force. He was engaged in a common investigation of the Robert Lewis murder. He participated in a meeting with the task force on February 4, 1977, before the Varela arrest. He was called to the Monterey Park police station on February 20, shortly after the arrest of Varela. He participated in the search of the impounded car. He was present on the 21st when Varela was first questioned by the task force investigators, which occurred one day after Varela's arrest, and was a significant factor in Varela's decision to turn state's evidence on February 25. Helvin personally questioned Varela on at least three separate occasions following February 25. He prepared the Varela affidavit and secured the search warrant. Along with officers from the Prison Gang Task Force, he executed the warrant and arrested Gonzales. The evidence shows that Helvin was deeply involved in the process of Varela's turning and the resulting Gonzales arrest. Yet in ruling that Varela's statements must be suppressed, the trial court made clear that, with the exception of the Sacramento law enforcement officers, “the testimony elicited during these proceedings shows a remarkable lack of recall by the witnesses, or more specifically the selected lapse of memory in certain key areas.”

The trial court found that: “Varela's statement cannot be considered spontaneous due to the intense effort to turn him.” The People do not dispute the trial court's conclusion. Nor do they dispute the trial court's disbelief of the reasons which the police officers testified Varela gave for his decision to be a witness for the People.

The People rely on Gonzales' reasons for becoming the state's witness to show the voluntariness of his statements. Officer Helvin testified that Gonzales turned “because his family was tired of his activities; his family was tired of the time he had spent in prisons, his wife, particularly; he was concerned because his children were reaching the age where they now were beginning to understand what some of his activities were all about and the fact that he had been away, and where he was; he was tired of having the organization, the group come to him every time they needed something done.”

But, as the trial court noted, as grounds for denying that attenuation occurred, the “reasons attributed to Gonzales' turning are basically the same as those given to Varela's, ...” Since the trial court disbelieved the Varela reasons and Helvin, who was present when Varela turned, offered substantially the same reasons for Gonzales' turning, the trial court must be read as disbelieving Helvin's testimony. The record supports the trial judge's disbelief.

Since Helvin's testimony is the only evidence of Gonzales' “independent act of free will,” there is no credible evidence to support the attenuation.

II

Assuming that we credit Helvin's testimony, other evidence compels support for the trial court's conclusion that Gonzales' statements were not voluntarily made.

In addition to determining whether admissions are “sufficiently an act of free will to purge the primary taint” of the police misconduct, the People bear the burden of proving that Gonzales' statements were voluntary pursuant to Fifth Amendment standards. (Brown v. Illinois, supra, 422 U.S. 590, 601-602, 95 S.Ct. 2254, 2260-61, 45 L.Ed.2d 416.) “The voluntariness of the statement is a threshold requirement (citation) and the burden of showing admissibility rests ... on the prosecution.” (People v. DeVaughn, supra, 18 Cal.3d at pp. 898-899, 135 Cal.Rptr. 786, 558 P.2d 872, quoting from Brown, supra, 422 U.S. at pp. 601-602, 95 S.Ct. at pp. 2260-2261.)

When the search warrant was served at the Gonzales residence, Helvin kicked down the front door of the house. Investigator Alan Price of the Monterey Park Police Department testified that Gonzales' wife was “terrified” and that their children were “scared, screaming, crying.”

Following his arrest, Gonzales was transported to the Los Angeles Police Department by Officer Price and booked into the city jail. On the ride to Los Angeles, Price testified that he asked Gonzales: “(I)s it going to be, Eddie, every three months the police come, serve a search warrant at our house, kick down your door, terrorize your children, scare the heck out of your wife and take you away in shackles....” Gonzales replied with the incriminating statement, “I'll have to do the time.” At this point, Gonzales had yet to be informed of his Miranda rights.

In ruling that the Gonzales statements were the product of police misconduct, the trial court specifically noted “Agent Price's statement to Gonzale(s) of what he could expect in the future ....” (Ante, fn. 3.) It is clear that the court construed and could construe Price's statement as a threat.

Officer Helvin testified that Gonzales telephoned his wife on the day of his arrest and that the following day Gonzales requested that Helvin meet with him, which he did, resulting in his admissions and decision to cooperate.

As counsel for the People stated in oral argument, it is likely that Gonzales' decision to cooperate was made at the time he phoned his wife on the day of and within hours of his arrest. That follows so closely upon the events of the search, seizure, arrest, and Price's threatening statements as to be the product of them.

There is substantial evidence to support the trial court's conclusions that Gonzales' statements were not voluntary.

III

The People rely on language in United States v. Ceccolini, supra, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268, that “the exclusionary rule should be invoked with much greater reluctance where the claim is based on a causal relationship between a constitutional violation and the discovery of a live witness than when a similar claim is advanced to support the suppression of an inanimate object.” (Id., at p. 280, 98 S.Ct., at p. 1062.)

In Ceccolini an FBI agent obtained evidence of a gambling offense from a citizen-witness, a former employee of the defendant, as a result of information supplied by a police officer, without knowledge that the information had been illegally obtained by the officer some four months before.

There is nothing in Ceccolini which affects our decision. It does not alter the burden of proof of attenuation which alone is dispositive of this case.

Nor does Ceccolini depart from established case law on the issue of voluntariness. Voluntariness is still a threshold Fifth Amendment prerequisite to the admission of Gonzales' statements. (People v. DeVaughn, supra, 18 Cal.3d at p. 898, 135 Cal.Rptr. 786, 558 P.2d 872; Brown v. Illinois, supra, 422 U.S. at pp. 601-602, 95 S.Ct. at pp. 2260-2261; People v. Johnson, supra, 70 Cal.2d at p. 549, 75 Cal.Rptr. 401, 450 P.2d 865; In re Jorge S., supra, 74 Cal.App.3d at pp. 858-861, 141 Cal.Rptr. 722.)

Last, Ceccolini is readily distinguishable from this case. It did not involve a confession by a suspect who was arrested, charged with a crime, placed in police custody, threatened and then repeatedly interrogated over a short period of time. As the Ninth Circuit Court of Appeals recently said, in Ceccolini a “distinction was made between the ‘live-witness' testimony of a potential co-defendant and that of a witness not arrested and not implicated in the criminal activities at issue.” (United States v. Humphries (9th Cir. 1979) 600 F.2d 1238, 1247.)

IV

In their Petition for Rehearing, granted by the court, the People additionally argue that “there was not substantial evidence supporting the trial court's implied finding Gonzales will not ultimately testify of his own free will, a forecast which ‘is necessarily an exercise in sheer guesswork.’ ”

They speculate that “intervening events may well transform Gonzales into a most willing and enthusiastic ally of the prosecution,” and further suggest that “(t)here (is) no reason why the claim cannot be litigated pretrial, as in the present case, reserving only for trial resolution where appropriate the question of the witness' willingness and motivations in testifying as a foundational inquiry and condition precedent to proffering the witness' testimony (Evid.Code, ss 402, 403, 405.)”

The People do not make any showing that there are or will be such “intervening events” and the People did not avail themselves of the extraordinarily lengthy 1538.5 proceedings to claim or show that some act of free will occurred subsequent to the events reviewed here.

Their argument reduces to the claim that the the 1538.5 procedure is inadequate to the task of adjudicating an issue of attenuation involving testimony and that an opportunity must be made available (presumably) up to the moment of trial testimony for the People to claim and prove a supervening act of free will.

There is no substantive or procedural warrant for the piecing off of the attenuation issue from the Fourth Amendment claims. The issue of attenuation is but one side of the coin of derivative illegality.

The issue of attenuation does not arise except as a defense to “the premise that the challenged evidence is in some sense the product of illegal governmental activity.” (United States v. Crews, supra, 445 U.S. at p. 471, 100 S.Ct. at p. 1250, 63 L.Ed.2d at p. 545.)

The nexus between the illegal conduct and its claimed product is but a single subject of inquiry, “ ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ (Citation.)” (Wong Sun v. United States, supra, 371 U.S. at pp. 487-488, 83 S.Ct. at p. 417.) It must be determined in a single proceeding at which the competing claims of causation are examined.

Prior to the adoption of Penal Code section 1538.5, a search and seizure issue was viewed as an “issue of preliminary fact or law ... for the judge” to resolve, either pretrial or at trial. (Witkin, Cal.Evidence (2d ed. 1966) s 61, p. 64.) The procedure was codified in Evidence Code section 405. (Stats.1965, ch. 299, s 405, p. 1303.)

Penal Code section 1538.5 replaced the preliminary fact procedure with a separate statutory procedure. (Stats.1967, ch. 1537, s 1, p. 3652.) It provides with limited exceptions the sole procedure for the litigation of Fourth Amendment claims. (See Pen.Code, s 1538.5, subds. (d) and (m).) And, with one exception (s 1538.5, subd. (h)), it requires litigation prior to trial. “Illegally acquired evidence is not excluded by objection at trial but by motions and rulings which must be made in advance of trial.” (People v. Dowdy (1975) 50 Cal.App.3d 180, 187, 123 Cal.Rptr. 155.) Section 1538.5 applies to the unlawful securing of testimonial evidence. “When testimonial evidence is obtained as a result of an illegal search it is ‘intangible’ evidence within the meaning of” Penal Code section 1538.5. (Lockridge v. Superior Court (1970) 3 Cal.3d 166, 169, 89 Cal.Rptr. 731, 474 P.2d 683, and cases cited therein.)

The People had ample opportunity to litigate the issue of attenuation in the year and one-half during which the trial court conducted the 1538.5 proceedings. There is no other forum for resolution of the issue.

The 1538.5 procedure operates sufficiently close to trial to provide the People with opportunity to show that a decision to cooperate with law enforcement agencies was independent of a Fourth Amendment violation. Although additional delay occurred subsequent to the trial court's decision, the delay was initiated by the People's petition.

The People elected to rely upon events immediately following the illegal search and seizure to prove attenuation. They failed their burden of proof. No further opportunity is available.

We deny the petition and discharge the alternative writ. The stay order previously issued will terminate upon finality of this opinion.

Adhering to the limitations imposed upon us in reviewing the factual determinations of the trial court in Penal Code section 1538.5 proceedings, and to our role as an intermediate appellate court, I concur in the judgment and opinion of Justice Blease.

There can be no doubt as to the substantiality of the evidence which required suppression of Gonzales' extrajudicial statements to the police. As to the suppression of Gonzales' anticipated testimony at trial, I do not interpret United States v. Ceccolini (1978) 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268, with the same degree of enthusiasm exhibited by the Presiding Justice. Compared with the egregious conduct here of Sergeant Helvin, the lead and arresting officer, Ceccolini is a tame case. There, the arresting FBI agent had no knowledge that he was acting on information which had been illegally obtained, several months earlier, by a police officer. There was no such extensive and oppressive police misconduct as that which stigmatized the actions of the officers in the present case.

In the application of Penal Code section 1538.5 to a test of the lawfulness of securing testimonial evidence, our Supreme Court has held that “(w)hen testimony is obtained as a result of an illegal search it is ‘intangible’ evidence within the meaning of (Penal Code section 1538.5).” (Lockridge v. Superior Court (1970) 3 Cal.2d 166, 169, 89 Cal.Rptr. 731, 474 P.2d 683.)

Here, for reasons not shown by the record, Gonzales was not called as a witness. In Ceccolini, the district court suppressed the testimony of one who had become a witness. The Supreme Court observed: “The evidence indicates overwhelmingly that the testimony given by the witness was an act of her own free will in no way coerced or even induced by official authority as a result of (the unlawful search).” (Emphasis added.) (United States v. Ceccolini, supra, 435 U.S. at p. 279, 98 S.Ct. at p. 1061.) Ceccolini may undercut as the People contend but in my opinion does not undermine the rule of Lockridge. Our California Supreme Court may ultimately speak to that question.

Penal Code section 1538.5 presupposes that Fourth Amendment claims will be fully disposed of prior to trial. The People here had that opportunity. The prosecution is not entitled to a second chance. Evidence Code sections 402 and 405 simply have no application to the settlement of such claims. Nor can I accept the suggestion of the dissent that by application of the Evidence Code sections, or by some other fashioning, it may be shown that “intervening events may well transform Gonzales into a most willing and enthusiastic ally of the prosecution,” thus purging the “taint” incurred by the original police illegality.

The vigor of the dissenting language grasps the imagination and makes one wonder, as well, how an ordinary citizen could understand the result we reach. The victim lies dead and those charged with the crime are permitted, by the same body of law which provides punishment for the guilty, to have withheld from the jury the testimony of a live eyewitness and admitted participant in her killing.

To turn a phrase traditional to the exclusionary rule, that ordinary citizen might be heard to suggest that this is “a dirty business.”

The ruling of the trial court consists of two distinct parts: (1) suppression of Gonzales' extrajudicial statements to police, and (2) suppression of Gonzales' anticipated testimony at trial. I agree that the trial court's ruling is supported by substantial evidence and to the extent it deals with Gonzales' extrajudicial statements is conclusive of that issue; I do not agree that the trial court's ruling as it relates to the live trial testimony of Gonzales should constitute the final word on the admissibility of that evidence in the underlying criminal prosecution.

I.

Gonzales' Statements

The People ask us to hold that Gonzales' extrajudicial statements are so much the product of his free will that they are purged of the taint of illegality attending Varela's arrest which in turn led to Gonzales' arrest and statements. I would be constrained to do so were it possible, consistent with the rules governing pretrial appellate review of a suppression order, to consider the reasons which the People contend induced Gonzales' change of heart.

Officer Helvin testified Gonzales told him that he wished to cooperate with the police because he had grown tired of his illegal activities and the resulting periodic imprisonment he had suffered; he was also concerned by the effect of his unlawful conduct on his children who were now of impressionable age; finally, he was weary of the constant demands upon him by the Mexican Mafia.

The motivations suggested by these reasons derive uniquely from considerations personal to the actor and thus beyond the influence and control of the police; if Gonzales' cooperation were so stimulated, it would be entirely inconsistent also to find that it was in some way attributable to and therefore the product of police misconduct. Moreover, Gonzales' asserted metamorphosis from pariah to penitent is not so unique as to tax credulity; the countless occasions in human experience of similar transformations give assurances of its genuineness. If accepted, Gonzales' explanation, through Helvin, of his out-of-character conduct satisfactorily establishes that he acted of his own volition, uninfluenced by official illegality.

So far as this record is concerned, however, Gonzales' motivations have been filtered through the testimony of Officer Helvin. For reasons which do not appear, Gonzales himself did not testify at the suppression hearing. Thus, acceptance of the People's theory necessarily requires acceptance of Officer Helvin's testimony.

Questions of credibility are exclusively for the trial court to determine. Officer Helvin's testimony is not inherently incredible. Furthermore, it is not contradicted. Had the trial court accepted it, we would be bound by that determination. The order of suppression, however, carries with it an implicit rejection of Helvin's testimony, foreshown in the trial court's unfavorable critique of the credibility of certain of the law enforcement witnesses. The implicit rejection of Helvin's testimony leaves the record in a condition where I cannot say the People have carried their burden or the trial court's order is not supported by substantial evidence.

II.

Gonzales' Testimony

The per se suppression of a witness' trial testimony for no other reason than that knowledge of the witness' identity may be causally connected to an illegal arrest demeans the human condition because it utterly disdains any distinction between the human personality and inanimate objects such as a gun or a document. (See Lockridge v. Superior Court (1970) 3 Cal.3d 166, 170, 89 Cal.Rptr. 731, 474 P.2d 683, and cases cited there.) The significance with which demonstrative evidence appeals to the senses is unchanging; what is seized by law enforcement is precisely what is presented in court. By analogy, a live witness is “seized” only in the sense that he becomes known to law enforcement and thus available to testify. But official knowledge of his identity does not in any sense prospectively settle or solidify his trial testimony. The distinction is cogently drawn in United States v. Ceccolini (1978) 435 U.S. 268, 277, 98 S.Ct. 1054, 1060, 55 L.Ed.2d 268, 277: “ ‘The proffer of a living witness is not to be mechanically equated with the proffer of inanimate objects illegally seized. The fact that the name of a potential witness is disclosed to police is of no evidentiary significance, per se, since the living witness is an individual human personality whose attributes of will, perception, memory and volition interact to determine what testimony he will give. The uniqueness of this human process distinguishes the evidentiary character of a witness from the relative immutability of inanimate evidence.’ ” (Quoting from Smith v. United States (D.C. Cir. 1963) 324 F,2d 879, 881-881.)

Ceccolini dealt with the exclusion of live-witness testimony. Rejecting a per se rule that live-witness testimony never be excluded (Ceccolini, supra, 435 U.S. at p. 275, 98 S.Ct. at p. 1059, 55 L.Ed.2d at p. 276), the high court emphasized the predominant importance in attenuation analysis of the degree of free will manifested by the witness. Observing that “The evidence indicates overwhelmingly that the testimony given by the witness was an act of her own free will in no way coerced or even induced by official authority as a result of (the unlawful search),” the high court reversed an order suppressing the witness' testimony (Ceccolini, supra, at p. 279, 98 S.Ct. at p. 1061, 55 L.Ed.2d at p. 79).

Here, the order of suppression clearly implies that unlawful police conduct was exploited to induce Gonzales' cooperation with the authorities and that he therefore did not act of his own free will in extending that cooperation. To the extent that the implied finding refers to Gonzales' state of mind preceding his extrajudicial statements, it is supported by substantial evidence; to the extent the implied finding purports to forecast Gonzales' state of mind at some future date when called as a witness, it is speculation of the flimsiest order. Even accepting, as I must, the trial court's determination that Gonzales' initial “cooperation” with the police was the direct product of their unlawful conduct, who can deny the People's contention that “intervening events may well transform Gonzales into a most willing and enthusiastic ally of the prosecution.” Were that to occur, I can conceive of no policy favoring suppression of relevant testimony of a willing witness that would outweigh the policy assigning to the trial the ultimate function of ascertaining the truth.

Our statutory procedure for litigating exclusion of evidence in the context of a claim of unlawful search and seizure contemplates the litigation of such questions prior to commencement of trial (Pen.Code, s 1538.5). However, lack of a timely statutory procedure to determine a witness' state of mind contemporaneous with the offer of his testimony should not pose an insuperable impediment to ascertainment of the truth. Implicit in the statutory requirement of pretrial litigation of motions to suppress based on a claim of illegal search is the assumption that all evidence relevant to the suppression motion can be marshalled and presented before trail. The assumption is manifestly incorrect where the evidence sought to be suppressed is the testimony of a witness. There the question to be determined is whether the witness' testimony is an act of his own free will sufficient to dissipate the taint of antecedent illegality. In such an inquiry the decisively relevant focus is upon the witness' state of mind at the time he testifies. That time is necessarily after trial has commenced. Obviously therefore the Legislature did not intend in this limited area of suppression practice that the procedures be governed by Penal Code section 1538.5, because that section does not lend itself to a fair determination of those issues; indeed it operates affirmatively to frustrate ascertainment of the truth because it denies the People any opportunity to present what may be the only relevant evidence favoring admissibility. I cannot impute to the Legislature an intent so cavalierly disdainful of the overriding purpose of a trial: ascertainment of the truth.

Gonzales was in fact an eyewitness to and confessed participant in the murder with which real parties in interest are charged. (See Hammarley v. Superior Court (1979) 89 Cal.App.3d 388, 400, 153 Cal.Rptr. 608.) Exclusion of his testimony threatens to skew the outcome of the trial away from the truth and toward a false verdict. If when called to testify Gonzales is in fact a willing witness for the People, there is no legal or moral justification for denying the jury the benefit of his sworn testimony. The foundation for admissibility of such testimony can be established within the framework of evidentiary rules of general application (see Evid.Code, ss 402, 405). In any event, Gonzales' extrajudicial statements should be excluded from evidence (cf. People v. Underwood (1964) 61 Cal.2d 113, 122-125, 37 Cal.Rptr. 313, 389 P.2d 937).

I would hold that the trial court must afford the People the opportunity at trial to purge Gonzales' testimony of the antecedent taint of illegality.

FOOTNOTES

1.  Although the People in their Petition for Writ of Mandate characterized the trial court's suppression order as having “suppressed the statements and anticipated testimony of (inter alia) Edward Gonzales,” they suggest on rehearing that the trial court's suppression order, which refers to Gonzales' “statements,” “does not explicitly extend to (Gonzales') anticipated testimony” and asks that we remand the case for a determination “consistent with United States v. Ceccolini ... whether Gonzales' decision to testify attenuates the taint of the unlawful police conduct ....” We decline to do so. As the People concede, “the admissibility of Gonzales' ... testimony was put at issue and joined ....” The trial court granted the defendants' suppression motions which embraced Gonzales' anticipated testimony. We read the suppression order as consistent with that action.

2.  In separate petitions filed in conjunction with this petition, defendants challenged orders denying the suppression of other evidence in the case pursuant to their Penal Code section 1538.5 motions. In each case we affirmed the decision of the trial court denying suppression of the challenged evidence. (Hernandez v. Superior Court (1980) 110 Cal.App.3d 355, 185 Cal.Rptr. 127; Delia v. Superior Court, 3 Civ. 18713.)

3.  The People do not separately claim attenuation of the Lara and Maddox statements and anticipated testimony on the assumption of the illegality of the Gonzales statements. Rather, they assert that “(b)ecause Lara's and Maddox's statements are derivative of Gonzales's and were ordered suppressed for that reason ... the focus appropriately rests on Gonzales.” Accordingly, we limit our discussion to the Gonzales statements and anticipated testimony.

4.  The trial court found: “As a direct result of Varela's turning State's evidence, a search warrant was issued for the search of one Gonzale(s) residence. The sole (source) for the information for this search warrant was received from Varela. It necessarily follows that the evidence received as a result of the evidence and statement of Gonzale(s) is a part and parcel of the illegality that resulted in Varela's supplying this information and must be suppressed. (P) It has been suggested that there was attenuation of Gonzale(s)' statement as well as Varela's. The court finds this suggestion without merit. In view of the totality of the circumstances and the direct uninterrupted path from Varela to Gonzale(s), coupled with reasons attributed to Gonzale(s)' turning which are basically the same as those given to Varela's, and (in addition) Agent Price's statement to Gonzale(s) of what he could expect in the future, the Court finds no attenuation which would render the statements of Gonzale(s) admissible.”

5.  There was also substantial testimony, principally by Officer Price of the Monterey Park Police Department, that on the date of Gonzales' arrest he was a heroin addict and “had a pretty heavy heroin habit per day.” Subsequent to his arrest, Gonzales was given prescribed narcotics, morphine sulphate and demerol, which are powerful pain killers used to ease withdrawal pains. Officer Price first testified that he helped administer the drugs to Gonzales from March 8 to 9, 1977, at four-hour intervals. He later testified that the drugs were administered during the period August 4 to 11, 1977. Officer Price further testified that most heroin addicts begin suffering withdrawal symptoms within eight to ten hours after their last use. But, for two reasons, we do not base our affirmance of the trial court order upon the impact of withdrawal pains upon Gonzales' reasons for deciding to testify. The trial court did not list narcotic addiction in its grounds of decision. (See ante, fn. 4) The evidence does not show the time elapsing from Gonzales' last use of narcotics to the time he (possibly) decided to cooperate.

BLEASE, Associate Justice.