PEOPLE v. KELLY (1983)

In this case we consider whether a suspect who willfully gives a policeman a false name and address knowing that it may have the effect of thwarting a criminal investigation “delays or obstructs” a public officer in the discharge of his duties within the meaning of Penal Code section 148.   We hold he does.

A jury convicted defendant of six counts of robbery (Pen.Code, § 211), six counts of false imprisonment (Pen.Code, § 236), three counts of burglary (Pen.Code, § 459), and one count of assault with a deadly weapon (Pen.Code, § 245).   The jury also found defendant was both armed with and personally used a firearm in the commission of each of the substantive offenses (Pen.Code, §§ 12022, subd. (a), 12022.5) and that defendant inflicted great bodily injury in the commission of one robbery count and the assault.  (Pen.Code, § 12022.7.)   On appeal, he contends his unlawful arrest rendered his subsequent statements to the police inadmissible.   He also asserts there was insufficient corroboration of the testimony of an accomplice.

Defendant's convictions resulted from his participation in the so-called “Oak Park Doorbell Gang.”   As part of a negotiated plea, one of the members of the “gang,” Michael Belton, testified against defendant at trial.   Belton testified to defendant's involvement in each of three separate robberies which occurred on January 1, 5 and 10, 1981.   The modus operandi for each robbery was the same.   Defendant would knock on the door of a residence near Belton's home and enter either by force or subterfuge.   While defendant held a gun on the victims, a third accomplice, Lindon Woodfin, searched the victims and the house for valuables.¹  After the victims were placed in a closet, the perpetrators cut the phone lines and left.

The facts relating to defendant's arrest are as follows:  On January 21, 1981, several days after the third robbery, police officers went to the Belton home near McClatchy Park to arrest Carl Belton on an unrelated burglary.   As Carl Belton was being arrested, his brother, Michael, and defendant arrived at the scene.   Carl called out to Michael indicating to the officers that Michael was his alibi.   Defendant was then asked for his name and address and responded he was “John Wesley Williams” and gave an address in West Sacramento.   Later that day, Carl Belton stated he knew defendant as “George.”   The officer also checked the address given by defendant and found it to be nonexistent.   The following day, the same officer again saw defendant near McClatchy Park about 4:30 in the afternoon.   Defendant again stated his name was John Wesley Williams.   The officer then told defendant that he was under arrest.   As the officer attempted to handcuff him, defendant struggled and broke away and ran.   He was quickly apprehended.

Defendant was booked for violations of Penal Code sections 647, subdivision (e), and 148.²

Six hours after his arrest, defendant was interviewed at the Hall of Justice.   He was advised of his Miranda rights and agreed to speak.   Defendant denied all knowledge of, or participation in, the robberies.   During the course of the conversation, however, defendant referred to a briefcase which was used in the third robbery and alluded to the fact all the victims were Caucasian before being told of these facts by the interrogating officer.

I

Defendant initially contends that the disorderly conduct statute under which he was arrested (Pen.Code, § 647, subd. (e)), is unconstitutionally vague and his subsequent incriminating statements should have been suppressed as “fruit of the poisonous tree.”

 We find under the facts of this case that Penal Code section 647, subdivision (e), did not provide a basis for defendant's arrest.   Defendant was not “loiter[ing]” or “wander[ing] upon the streets or from place to place without apparent reason ․”  (Pen.Code, § 647, subd. (e).)  Defendant was walking on a public street near a public park during daytime hours when he was arrested.   Nor do the facts support the conclusion that the “surrounding circumstances” were such as to indicate that “the public safety demands” his identification.  (Pen.Code, § 647, subd. (e).)  Thus, we need not reach the question of whether section 647, subdivision (e), is unconstitutionally vague.³  (See People v. Williams (1976) 16 Cal.3d 663, 667, 128 Cal.Rptr. 888, 547 P.2d 1000.)

 We do, however, conclude that there was sufficient basis, independent of Penal Code section 647, subdivision (e), to arrest defendant.   When Officer Lopez approached defendant on January 22, he had probable cause to believe defendant had deliberately given him false information in an effort to impede his investigation of the robberies in question.   We believe defendant was lawfully arrested as a person who “wilfully ․ delays, or obstructs any public officer, in the discharge or attempt to discharge any duty of his office ․”  (Pen.Code, § 148.)   In this case, the delay or obstruction of the investigation of the Oak Park robberies.⁴

While the principal cases construing Penal Code section 148 have involved some sort of physical resistance or obstruction of an officer, the statute is not limited by its terms to such situations.   It has been recognized that the statute does not require the use of direct physical force but necessarily includes passive, indirect or circumstantial impediments designed to delay or obstruct the exercise of the officer's duties.  (In re Bacon (1966) 240 Cal.App.2d 34, 52, 49 Cal.Rptr. 322.)   This principle has been recognized in other jurisdictions where similar obstructing justice statutes have been applied to proscribe the refusal to obey police orders, such as a request for name and address.  (See generally, Annot., What Constitutes Obstructing or Resisting an Officer, in the Absence of Actual Force (1972) 44 A.L.R.3d 1018, 1041.)   For example, in Hudson v. State (1975) 135 Ga.App. 739, 218 S.E.2d 905, a conviction for obstruction of justice was affirmed where a woman falsely told police officers the suspect they were looking for was not present at the residence in an effort to impede their investigation.   Similarly, the suspect was also guilty of obstructing justice by giving a false name and then refusing to produce identification.  (Hudson v. State, supra, 218 S.E.2d at p. 907.)

Cases such as Hudson and the present one must be distinguished from those where a person simply remains silent or refuses to answer a police officer's question.⁵  (Cf. In re Gregory S. (1980) 112 Cal.App.3d 764, 779, 169 Cal.Rptr. 540.)   The defendant here did more than remain silent and refuse to identify himself.   He actively misled the officer in an attempt to conceal his identity and obstruct the robbery investigation.⁶  He twice gave a false name and once a fictitious address.   The officer did not act on a mere hunch.   He had checked the address and knew it was fictitious and he had reason to believe the name given was false.   Defendant's conduct was more analogous to a fraudulent misrepresentation than to mere silence.   Also, there is absolutely no indication in the record he sought to exercise his right to remain silent.   He volunteered the false information.   In fraudulent misrepresentation cases it is generally recognized that a person who has no duty to speak but nevertheless chooses to do so is bound to speak honestly.   (See generally, 4 Witkin, Summary of Cal.Law (8th Ed. 1974) Torts, § 464, pp. 2727–2728.)   We conclude that defendant's active misrepresentation of his name and address falls within the purview of Penal Code section 148 and Officer Lopez had probable cause to arrest him for a violation of that statute.  “The fact an officer may place a person under arrest for the wrong offense does not invalidate the arrest and require exclusion of evidence seized incident to the arrest, if the officer nevertheless had probable cause to arrest the person for another offense.”  (In re Donald L. (1978) 81 Cal.App.3d 770, 775, 146 Cal.Rptr. 720.)   As the initial arrest was lawful under Penal Code section 148, defendant's conduct in struggling with the officer and fleeing formed an additional violation of Penal Code section 148, for which defendant was lawfully arrested and booked.  (People v. Allen (1980) 109 Cal.App.3d 981, 987, 167 Cal.Rptr. 502;  cf. In re Michael V. (1974) 10 Cal.3d 676, 681, 111 Cal.Rptr. 681, 517 P.2d 1145.)   Accordingly, the defendant's subsequent statements were not “fruit of the poisonous tree” and the trial court correctly denied defendant's motion to suppress them.

 Even were we to hold the statements were the product of an illegal arrest, we must agree with the People that defendant's statements were “ ‘sufficiently an act of free will to purge the primary taint’ ” of the illegal arrest.  (Brown v. Illinois (1975) 422 U.S. 590, 602, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416, 426;  Wong Sun v. United States (1963) 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.)   First, we characterize these statements as “admissions” and not a “confession” as they were merely the recital of facts tending to establish guilt rather than a declaration of defendant's intentional participation in a criminal act.  (People v. McClary (1977) 20 Cal.3d 218, 230, 142 Cal.Rptr. 163, 571 P.2d 620.)⁷  Next we examine the admissions in light of the principles set forth in Brown v. Illinois, supra, and the recent case of Taylor v. Alabama (1982) 457 U.S. 687, 102 S.Ct. 2664, 73 L.Ed.2d 314.   In these cases the Supreme Court listed the factors to be considered in determining whether a confession or admission is sufficiently the product of a free will to break the causal connection between the illegal arrest and the statement.   These factors were:  the presence of Miranda warnings, the temporal proximity of the arrest and the admissions, the presence of intervening circumstances and the purpose and flagrancy of the official misconduct.  (Taylor v. Alabama, supra, 457 U.S. at p. ––––, 102 S.Ct. at p. 2667, 73 L.Ed.2d at p. 319.)

 In the present case defendant was given Miranda warnings before he was questioned.   These warnings, though not dispositive, are an “important factor” in determining whether the admissions were obtained by exploiting the alleged illegal arrest.  (Brown v. Illinois, supra, 422 U.S. at p. 603, 95 S.Ct. at p. 2261, 45 L.Ed.2d at p. 427.)

The arrest and the admissions in this case were separated by a significant amount of time—some six hours.   Moreover, the interrogation of defendant was done by a different officer on a topic other than that for which he was arrested.   An additional “intervening circumstance” was the confession of Lindon Woodfin, an accomplice, with which defendant was confronted.   This confession was obtained independently of defendant's arrest and it was defendant's responses to this evidence that led to the admissions, not his arrest.   In Taylor, the court rejected the contention that a fingerprint identification (obtained from fingerprints of defendant taken immediately after his illegal arrest) was a meaningful intervening circumstance since the fingerprints were themselves “fruit” of the illegal arrest.  (Taylor v. Alabama, supra, 457 U.S. at p. ––––, 102 S.Ct. at p. 2669, 73 L.Ed.2d at p. 321.)   Such is not the case here.   Woodfin's confession was obtained independently from defendant's arrest.

An additional significant factor here is defendant's conduct during the interrogation.   In both Brown and Taylor the defendant succumbed to police pressure and signed a written statement.   In Taylor it was a full confession and in Brown it detailed his participation in the homicide.   Here, defendant refused to succumb to police pressure and made the admissions during an attempt to exculpate himself.   Unlike Brown, defendant steadfastly denied participation in the robberies and the damaging admissions were the product of his own carelessness.   Unlike Taylor, who at first denied any participation and then reversed himself and confessed, defendant's admissions resulted from the volunteering of too many facts, not a total change of position.   Defendant voluntarily chose to talk to the officers, in an effort to exculpate himself from connection with the crimes.   The voluntary nature of this conversation is not reduced because defendant mistakenly or inadvertently displayed a damaging knowledge of the facts of the robberies.

The final factor to be considered is the flagrancy of the police conduct.   The only alleged misconduct was in the initial arrest of defendant.   Defendant's arrest was not investigatory, was not based on uncorroborated testimony of an informer and he was not interrogated in the “hope that something would turn up.”  (Taylor v. Alabama, supra, 457 U.S. at p. ––––, 102 S.Ct. at p. 2669, 73 L.Ed.2d at p. 321.)   The facts simply do not support either the conclusion that the “impropriety of the arrest was obvious” or that the manner of the arrest demonstrated that it was “calculated to cause surprise, fright, and confusion.”  (Brown v. Illinois, supra, 422 U.S. at p. 605, 95 S.Ct. at p. 2262, 45 L.Ed.2d at p. 428.)   Thus, there was no “flagrant” police misconduct.

 Although none of these factors taken alone may be sufficient to distinguish Brown and Taylor, taken together they amply support the conclusion that defendant's admissions were the product of his free will and not the fruit of an allegedly illegal arrest.   We therefore conclude the record supports the trial court's implied finding that the connection between the allegedly unlawful arrest and the damaging admissions had become so attenuated as to dissipate any taint.  (Brown v. Illinois, supra, 422 U.S. at p. 598, 95 S.Ct. at p. 2259, 45 L.Ed.2d at p. 424.)

II

 Defendant also urges there was insufficient corroboration of Michael Belton's testimony and this requires reversal of his conviction.   He acknowledges that the similarity between Belton's and the victims' versions of the robberies demonstrates that they were describing the same incidents.   He also “recognizes” fingerprint evidence found at the scene of the third robbery “arguably” provides corroboration as to that robbery.   He urges, however, it is unclear to what extent the jury relied on the incriminating statements and their admission into evidence requires reversal.   Having concluded the statements were properly admitted, defendant's contention must fall of its own weight.

Penal Code section 1111 provides in relevant part:  “A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense ․”  In discussing the nature of this corroborating evidence it was recently stated:  “ ‘To corroborate the testimony of an accomplice, the prosecution must produce independent evidence which, without aid or assistance from the testimony of the accomplice, tends to connect the defendant with the crime charged.  [Citation.]  “The evidence need not corroborate the accomplice as to every fact to which he testifies but is sufficient if it does not require interpretation and direction from the testimony of the accomplice yet tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth;  it must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that the corroborative evidence be sufficient itself to establish every element of the offense charged.”  [Citations.]  “Although the corroborating evidence must do more than raise a conjecture or suspicion of guilt, it is sufficient if it tends in some degree to implicate the defendant.”  [Citation.]  “[T]he corroborative evidence may be slight and entitled to little consideration when standing alone.”  [Citation.] “ ․  Finally, ‘[u]nless a reviewing court determines that the corroborating evidence should not have been admitted or that it could not reasonably tend to connect a defendant with the commission of a crime, the finding of the trier of fact on the issue of corroboration may not be disturbed on appeal.’  [Citation.]”  (People v. Szeto (1981) 29 Cal.3d 20, 27, 171 Cal.Rptr. 652, 623 P.2d 213.)

Defendant was connected to the robberies by the following evidence:  His fingerprint was found on a Shaklee catalog which was left at the third robbery by one of the perpetrators.⁸  All the victims said the robbers included a lighter-skinned black man who held a knife and a darker-skinned black man who held the gun.   Woodfin, Belton and defendant are black, and Woodfin had lighter-colored skin.   Belton testified Woodfin carried a knife and defendant a gun in each robbery.   Defendant's actions in attempting to conceal his identity from the officer and fleeing upon being arrested warrant an inference of consciousness of guilt connecting him with all the offenses and indicating that Belton's testimony was truthful.  (People v. Perry (1972) 7 Cal.3d 756, 771–772, 103 Cal.Rptr. 161, 499 P.2d 129.)

Defendant is also connected to each of the robberies as the modus operandi of all were practically identical.   This evidence tends to indicate the three robberies were committed by the same persons.  (People v. Matson (1974) 13 Cal.3d 35, 40, 117 Cal.Rptr. 664, 528 P.2d 752.)   Defendant's connection to the third robbery through the fingerprint thus connects him to all the robberies.   Finally, defendant's own testimony tends to corroborate Belton as it bore upon his opportunity to commit the crimes.  (People v. Szeto, supra, 29 Cal.3d at p. 28, 171 Cal.Rptr. 652, 623 P.2d 213.)   Defendant was unable to account for his whereabouts during the robberies and thought he was at Belton's house on the dates of the first and third robberies.   This tends to connect defendant with Belton at the times Belton said they committed the crimes together.   This evidence alone was sufficient to corroborate Belton's testimony.

Adding the challenged admissions to the other corroborative evidence only serves to further prove Michael Belton was telling the truth.   Defendant's statements indicated he knew the third robbery involved a briefcase and that all the victims were Caucasian before being told of these facts.⁹  The inference is defendant could only have known the facts if he had participated in the robberies.¹⁰  Moreover, defendant's statements showed he had a motive to commit the robberies.  (People v. Szeto, supra, 29 Cal.3d at p. 28, 171 Cal.Rptr. 652, 623 P.2d 213.)   Defendant told the officer he did not work and had no source of income, yet he frequently “hit the clubs.”   Though defendant repudiated these statements at trial, they tend to show his motive to participate in strong-arm robberies.

Even without the statements made by defendant, Michael Belton's testimony was adequately corroborated by evidence which connected defendant to the crimes of which he was convicted.   Taking into consideration defendant's admissions, the conclusion is inescapable that Michael Belton accurately described defendant's participation in the robberies.   Accordingly, the conclusion of the jury on the issue of corroboration may not be disturbed on appeal.  (People v. Perry, supra, 7 Cal.3d at p. 774, 103 Cal.Rptr. 161, 499 P.2d 129.)

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.   Belton testified he did not participate in the second robbery.   He further testified his role in the other robberies was as a lookout.

2.   Penal Code section 647, subdivision (e), provides:  “Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor:  ․ [¶] (e) Who loiters or wanders upon the streets or from place to place without apparent reason or business and who refuses to identify himself and to account for his presence when requested by any peace officer so to do, if the surrounding circumstances are such as to indicate to a reasonable person that the public safety demands such identification.”Penal Code section 148 provides:  “Every person who wilfully resists, delays, or obstructs any public officer, in the discharge or attempt to discharge any duty of his office, when no other punishment is prescribed, is punishable by a fine not exceeding one thousand dollars, or by imprisonment in a county jail not exceeding one year, or by both such fine and imprisonment.”

3.   We note that the Ninth Circuit has recently declared Penal Code section 647, subdivision (e), unconstitutional and issued an injunction against its enforcement.  (Lawson v. Kolender (9th Cir.1981) 658 F.2d 1362.)   However, the United States Supreme Court noted probable jurisdiction in the matter (Kolender v. Lawson (1982) 455 U.S. 999, 102 S.Ct. 1629, 71 L.Ed.2d 865) and the case was argued on November 8, 1982.   The Ninth Circuit decision remains in effect pending a decision by the high court.  (Knauff v. Shaughnessy (1949 S.D.N.Y.) 88 F.Supp. 607, 609, aff'd (2 Cir.1950), 179 F.2d 628.)   The decision in Lawson is directly contrary to an earlier California case which upheld the same statute against a similar challenge.  (People v. Solomon (1973) 33 Cal.App.3d 429, 108 Cal.Rptr. 867.)

4.   It is in fact clear this was the alternative theory of arrest which the People advanced below, although they alternatively mislabeled it Penal Code section 69 and “section 31.”  Penal Code section 69 makes it a crime to deter or prevent, by means of threat or violence, an executive officer from performing a duty imposed by law.  “Section 31” is apparently a reference to Vehicle Code section 31, which provides:  “No person shall give, either orally or in writing, information to a peace officer while in the performance of his duties under the provisions of this code when such person knows that the information is false.”

5.   We recognize that, except in certain well defined circumstances, there is a right to anonymity and that a person ordinarily has no duty to give his or her name to a police officer.   Any rule making the mere exercise of the right to remain silent automatically equal “obstruction” would necessarily raise major constitutional questions.   As Mr. Justice White stated, “[o]f course, the person stopped is not obligated to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest ․”  (Terry v. Ohio (1968) 392 U.S. 1, 34–35, 88 S.Ct. 1868, 1886–1887, 20 L.Ed.2d 889, 913, White, J. concurring.)

6.   The court in Bacon described the scope of Penal Code section 148 as follows:  “ ‘The statute, however, does not limit the offense to resistance alone, it includes also willful acts of obstruction or opposition;  and to obstruct is to interpose obstacles or impediments, to hinder, impede or in any manner interrupt or prevent, and this term does not necessarily imply the employment of direct force, or the exercise of direct means ․’ ”  (Emphasis added.)  (In re Bacon, supra, 240 Cal.App.2d at p. 52, 49 Cal.Rptr. 322.)   Thus, where a suspect willfully gives a police officer a false name and address knowing that it may have the effect of hindering, impeding or preventing an investigation, Penal Code section 148 is violated.  (See CALJIC Nos. 1.20 and 1.21.)

7.   The characterization of defendant's statements as “admissions,” which defendant does not contest, renders inapplicable the doctrine of reversible error per se for the improper admission of a confession found in People v. Murtishaw (1981) 29 Cal.3d 733, 756, 175 Cal.Rptr. 738, 631 P.2d 446.

8.   Entry to this residence was obtained by a subterfuge.   One of the robbers rang Ms. Rounds' doorbell, posing as a Shaklee salesman.   Ms. Rounds took a catalog from the man and left it in the kitchen when she got him a drink of water.   When she returned the man was in her living room with a gun.   Defendant did not object to the admissibility of this fingerprint evidence, choosing instead to controvert the identification with his own expert.

9.   The perpetrator posing as a Shaklee salesman carried a briefcase, which police subsequently recovered.

10.   Defendant sought to rebut this inference by testifying he learned that all the victims were Caucasian from an unidentified third person, rather than through participation in the robberies.   If the jury believed defendant, the only incriminating statement remaining was his prior knowledge of the briefcase.

BOND,* Associate Justice. FN* Assigned by the Chief Justice.

EVANS, Acting P.J., and SPARKS, J., concur.