P. v. Molina

Filed 4/17/07 P. v. Molina CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County.

Ronald S. Coen, Judge. Affirmed.

Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.

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We review this case for a second time. Defendant and appellant Richard Molina was originally sentenced to 40 years to life in prison for the second degree murder of Stephen Clawson with the personal and intentional discharge of a firearm (Pen. Code,  187, subd. (a), 12022.53, subd. (d)). On his first appeal, we reversed the judgment because Molinas constitutional rights had been violated by the admission into evidence of his coerced confession. (People v. Molina (March 3, 2004. B163395) [nonpub. opn.].) After the remittitur issued and the matter was set for retrial, Molina moved to exclude evidence of the gun used to shoot Clawson, arguing that the discovery arose from his coerced confession (Evid. Code,  402). The trial court held an evidentiary hearing and denied the motion. Molina entered a negotiated plea of guilty to voluntary manslaughter, with admissions he had committed the offense for the benefit of a criminal street gang and had used a firearm (Pen. Code,  192, subd. (a), 186.22, subd. (b)(1), 12022.5, subd. (a)). The trial court sentenced Molina in accordance with his plea agreement to an aggregated state prison term of 31 years. Molina now contends his motion to exclude evidence of the gun used to kill Clawson was erroneously denied. We disagree and affirm the judgment of conviction.^[1]

FACTUAL AND PROCEDURAL BACKGROUND

Summary of Trial Evidence^[2]

Molina and Clawson were among a group of acquaintances who gathered for parties at which they used methamphetamine. Molina, then 19 years old, maintained a tough guy persona, regularly carrying and displaying a gun. Molina disliked Clawson and argued with him about money and Molinas girlfriend. In an incident in early November 2001, Molina held a gun to a prostrate Clawsons head, kicked him in the back, and threatened him over a debt.

At a party on the evening of November 23, 2001, Molina smoked methamphetamine and confided to a friend that he believed Clawson had touched Molinas girlfriend inappropriately. Visibly upset and angry, Molina said he wanted to confront Clawson alone. Later that night, Molina and Clawson left the party together, ostensibly to purchase food. Neither returned.

Clawsons body was found the following morning. He had been shot four times. The blood trail, shell casings, location of the body, bullet wounds, and abrasions on his hands and knees suggested that Clawson was shot in the back while running away, fell to the ground, and was shot in the neck from close range. Bullet casings recovered from the area where Clawsons body was found were fired from a gun identified by several witnesses as resembling Molinas gun.

During interrogation, Molina admitted shooting Clawson but claimed that it was accidental and that he had acted in self-defense.

Evidence Code Section 402 Hearing

Los Angeles Police Officer Tomas Melendez testified that on the morning of November 24, 2001, he and Detective Martinez arrived at an address on Terra Bella in Lakeview Terrace where they found Stephen Clawson,^[3]dead from apparent gunshot wounds. Bullet casings and expended cartridges were recovered from the scene. Approximately one mile away, Melendez and Martinez came upon Clawsons vehicle. Melendez concluded the driver of the vehicle, the suspected killer, had fled in haste and may have been in a panic mode because the vehicle was in the middle of the street, with its headlights illuminated, drivers door open, and engine running. It had been stopped parallel to the 210 freeway, near the Terra Bella underpass, and about 30 feet north of an embankment leading up to the freeway.

Melendez testified that he had always thought the driver had thrown the gun along the north side of the freeway, near where the vehicle had been left. However, Melendez did not call for an immediate search of the embankment for several reasons. It was raining heavily at the time, and a search of the shrubbery on the embankment would create a mess, and possibly result in covering items with dirt. The embankment was also enclosed by a fence; he believed it was necessary to obtain the assistance of the California Highway Patrol or Caltrans. Moreover, because Melendez would have to enlist Los Angeles County Sheriff Department volunteers, coordinating a search of the embankment would take time. In any event, Melendez decided his first priority was to find the driver, particularly because he might still have had the gun.

In the next few days, Melendezs investigation focused on Molina as the driver and suspected killer. Molina was subsequently arrested, but the gun was not found in his possession. During interrogation, Molina was coerced into admitting that he had shot Clawson, but he claimed that it was accidental and that he had acted in self-defense. He also told Officer Melendez and Detective Broker that he had thrown the gun near some trees in a vacant lot on the southwest corner of Terra Bella and Hume in Lake View Terrace. The next day, police unsuccessfully searched the vacant lot for the discarded gun. Officers later returned and searched the vacant lot with metal detectors, but they still did not locate the gun.

Melendez testified that he did not believe Molinas account of the shooting or of his disposal of the gun, but wanted to ensure, nonetheless, that the vacant lot had been thoroughly searched. When no gun was found, Melendez decided to have a search conducted of the freeway embankment near where Clawsons vehicle had been abandoned. On the side of the freeway near the embankment, a handgun was recovered and was subsequently determined to have been used to kill Clawson.

After considering the evidence, counsels argument, and relevant portions of the trial transcript, the trial court denied the motion to exclude evidence of the gun used to kill Clawson. The court concluded the prosecution had established by a preponderance of the evidence that the gun inevitably would have been discovered by lawful means and that officers in fact had acted independently and lawfully in searching for and finding the gun.

DISCUSSION

Molina contends that because his coerced confession was inadmissible, the trial court also had to exclude evidence of the gun used to kill Clawson as the fruit of the poisonous tree. (See generally Wong Sun v. UnitedStates (1963) 371 U.S. 471 [83 S.Ct. 407, 9 L.Ed.2d 441].) The People respond the trial court properly refused to exclude the challenged evidence by applying the independent source and/or inevitable discovery doctrines.

1. Standard of Review

In reviewing the denial of a suppression motion, the appellate court defers to the trial courts express or implied factual findings when supported by substantial evidence (People v. Ayala (2000) 23 Cal.4th 225, 255) and independently determines, based on relevant legal principles, whether the search or seizure was reasonable under the Fourth Amendment. (People v. Glaser (1995) 11 Cal.4th 354, 362; see also People v. Leyba

(1981) 29 Cal.3d 591, 596-597.)

2. Governing Law

Evidence obtained in violation of the federal constitutional right to be free from unreasonable search and seizure must be excluded. (People v. Williams (1999) 20 Cal.4th 119, 125.) The exclusionary rule also requires exclusion of any derivative evidence that is the product of the primary evidence or that is an indirect result of the unlawful search up to the point at which the connection with the unlawful search becomes so attenuated as to dissipate the taint. [Citation.] (Murray v. United States (1988) 487 U.S. 533, 536-537 [108 S.Ct. 2529, 101 L.Ed.2d 472].) The purpose of the exclusionary rule is deterrence. Presumably if the government knows it cannot rely on evidence gained in violation of a criminal defendants constitutional rights, it will be less inclined to violate those rights. To this end, the rule is designed to prevent police officers from being in a better position than they would have been had they not acted unlawfully. (People v. Weiss (1999) 20 Cal.4th 1073, 1077.)

There are two related exceptions to the exclusionary rule, which the parties address at some length on appeal: the independent source doctrine and the inevitable discovery doctrine. Under the independent source doctrine, the disputed evidence is admissible if the same evidence is obtained through independent lawful activities untainted by the initial illegality. (Murray v. United States, supra, 487 U.S. at p. 538.) This exception serves to put police officers in the same, but not a worse, position than they would have been in the absence of their unlawful conduct. (People v. Weiss,supra, 20 Cal.4th at pp. 1077-1078.)

The inevitable discovery doctrine is an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered. (Murray v. United States, supra, 487 U.S. at p. 488.) In contrast to the independent source doctrine, the issue with the inevitable discovery doctrine is not whether the police acquired evidence from an untainted source but whether the tainted evidence would have inevitably been discovered lawfully. (Nix v. Williams (1984) 467 U.S. 431, 448-450 [104 S.Ct. 2501, 81 L.Ed.2d 377]; People v. Thierry (1998) 64 Cal.App.4th 176, 180.)

Acknowledging both doctrines, Molina argues that neither applies here. Urging his own view of the record, Molina asserts that the discovery of the gun was not the result of a wholly independent and legitimate source, but the product of his unlawfully obtained confession in two respects: First, but for Molinas confession, police would have had no idea how Molina had disposed of the gun -- whether he had tossed it away, kept it, hidden it, or sold it. Second, Molinas confession alone prompted officers to return and, for the first time, search the entire area for the missing gun.

3. The Trial Court Properly Refused to Exclude Evidence of the Gun.

Substantial evidence supports the trial courts ruling that evidence of the gun used to kill Clawson was admissible, but not based on either the independent source or the inevitable discovery doctrines. Neither exception to the exclusionary rule applied because the exclusionary rule itself did not apply in this case. The search and seizure of the gun was not in violation of Molinas constitutional rights as the fruit of the poisonous tree.

In resolving a contention that the exclusionary rule bars the admission of certain evidence as the fruit of the poisonous tree, the issue is whether, granting establishment of the initial illegality by police, the challenged evidence has been come at by exploitation of that illegality. (Wong Sun, supra, 371 U.S. at p. 487.) The record shows Melendez and fellow officers did not discover the gun by exploiting Molinas coerced confession although that is not to say they did not try.

According to Melendezs hearing testimony, in confessing to having killed Clawson, Molina also claimed to have discarded the gun in a specific place (near some trees in a vacant lot on the southwest corner of Terra Bella and Hume) that he offered to show police. This vacant lot was searched twice, the second time with police using metal detectors, but the gun was never recovered; this failure led investigating officers to change gears. Melendez decided to return to the freeway embankment that he had initially targeted for a search after finding Clawsons vehicle. The embankment was located just south of where Clawsons vehicle had been abandoned and about one block from the vacant lot to which Molina had directed police. The gun was found on the embankment.

Notwithstanding Molinas vigorous argument to the contrary, nothing in his statements as to how and where he had disposed of the gun enabled police to find it. There is no evidence, for example, that, during interrogation, Molina did not limit the place he had purportedly discarded the gun to the vacant lot, but instead also suggested a broader area, such as near Clawsons vehicle or between the freeway and the vacant lot. We agree with the trial court that, given Molinas statements concerning the vacant lot turned out to be false, police found the gun despite his statements and not in reliance upon them. (See, e.g., People v. Watson (1965) 234 Cal.App.2d 203, 210-211 [After robbery victim contacted police, the defendant was subjected to an illegal arrest and search. The recovered incriminating evidence was suppressed, but the victims testimony of having identified the defendant in a police lineup was properly admitted. The manner in which the defendant was arrested had no material bearing upon the bona fides of [the victims] identification of the defendant. The information which [the victim] had regarding the robbery was not acquired by him as a result of the illegal arrest of defendant.].)

As for Molinas assertion that officers were prompted by his confession to undertake a search of the entire area for the first time, it is not supported by the record. Melendez testified police had decided to defer a search for the gun used to kill Clawson until after the suspected killer had been arrested. Melendez further testified that for various reasons he decided the investigation was better served by deferring an immediate search of the freeway embankment when Clawsons vehicle was found. In denying Molinas motion, the trial court impliedly found Melendezs testimony credible. Where, as here, the factual determination upon which a suppression motion turns depends on judging a witnesss credibility, deferential review is particularly necessary. (People v.Carpenter (1999) 21 Cal.4th 1016, 1040.)

In sum, the search and seizure of the gun used to kill Clawson was entirely unrelated to Molinas coerced confession and properly ruled admissible evidence.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZELON, J.

We concur:

JOHNSON, Acting P. J.

WOODS, J.

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^[1] In light of our disposition, we need not reach the law of the case issue.

^[2] The summary of the trial evidence is taken from our earlier opinion.

^[3] Although the evidentiary hearing transcript identifies the victim as Stephen Clausen, for clarity and consistency we refer to him as Stephen Clawson, as we did in our earlier opinion.