People v. Stiles

Page 260

189 Cal.Rptr. 260

139 Cal.App.3d 958

The PEOPLE, Plaintiff and Respondent, v. David Ray STILES, Defendant and Appellant.

Cr. 11051.

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

Feb. 15, 1983.

Hearing Granted March 13, 1983.

Appellate Defenders, Inc. and Christopher Blake, Panel Atty., Handy Horiye and Kenyon Keller, Staff Attys., San Diego, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Alan S. Meth and Lillian Lim Quon, Deputy Attys. Gen., for plaintiff and respondent.

WIENER, Acting Presiding Justice.

David Ray Stiles appeals a judgment entered on jury verdicts convicting him of first degree murder (Pen.Code, § 187), ¹ five counts of burglary in the first degree (§ 459), four counts of robbery (§ 211), six counts of rape in concert (§ 264.1), one count of attempted forcible oral copulation in concert (§§ 288a, subd. (d), 664) and one count of attempted robbery (§§ 211, 664). The jury found Stiles used a firearm in committing or attempting to commit all the offenses (§ 12022.5), and he used a deadly weapon in accomplishing one rape (§ 12022, subd. (b)). Stiles contends prejudicial error resulted when the trial court refused to sever the murder count from the other charges; when it allowed transcripts and tapes of jail conversations between Stiles and his parents and friend into evidence; and when it restricted cross-examination of the police officers who showed victims photographic line-ups in which Stiles was identified. We reject these contentions and affirm the judgment.

Factual Background

During a residential burglary on the evening of December 3, 1977, Stiles and his companion, both armed with handguns, terrorized the T. family by ransacking their San Diego North County home, raping their 16-year-old daughter and stealing money and property. Stiles also attempted to force the daughter to orally copulate him but was refused. His companion shot and wounded Mr. T.

In a nighttime burglary on December 15, 1977, Stiles and his partner, armed with handguns, robbed Mrs. P. and ransacked her North County residence. Stiles raped Mrs. P.

On December 22, 1977, in another nighttime burglary, Stiles raped Mrs. O. after threatening her with a knife. He and his accomplice robbed Mr. and Mrs. O. and ransacked their North County home.

On the evening of December 29, 1977, Stiles shot and killed George Mottino while burglarizing his North County home and attempting to rob him. Two other persons accompanied defendant.

Less than two hours later, Stiles and two partners robbed the R. family and burglarized their North County residence. Stiles and one of his companions, both armed with handguns, raped Mrs. R.

Discussion

Denial of the Motion to Sever Was Not Error

Stiles contends the People impermissibly charged him with commission of all the crimes in a single information. He also asserts the court prejudicially erred in denying his motion to sever the murder count from the other charges.

Section 954 authorizes the joinder of offenses in a single information when the different offenses are connected together in their commission, are different statements of the same offense or are different offenses of the same class of crime. Offenses are "connected together in their commission" when there is a common element of substantial importance among them. (People v. Matson (1974) 13 Cal.3d 35, 39, 117 Cal.Rptr. 664, 528 P.2d 752; People v. Kemp (1961) 55 Cal.2d 458, 475, 11 Cal.Rptr. 361, 359 P.2d 913, cert den., 368 U.S. 932, 82 S.Ct. 359, 7 L.Ed.2d 194.) Factors sometimes considered include location and modus operandi (People v. Matson, supra, 13 Cal.3d at p. 39, 117 Cal.Rptr. 664, 528 P.2d 752); time (People v. La Vergne (1966) 64 Cal.2d 265, 270, 49 Cal.Rptr. 557, 411 P.2d 309, cert. den., 385 U.S. 938, 87 S.Ct. 303, 17 L.Ed.2d 217); and use of the same weapon (People v. Pike (1962) 58 Cal.2d 70, 84, 22 Cal.Rptr. 664, 372 P.2d 656).

Stiles attempts to isolate these elements and to discount them individually as insubstantial. He states, for example, People v. Saldana (1965) 233 Cal.App.2d 24, 30, 43 Cal.Rptr. 312, cert. den., 384 U.S. 1026, 86 S.Ct. 1938, 16 L.Ed.2d 1032 held improper the joinder of a second offense which occurred upon the arrest of defendant for the first offense. The only apparent element in common was a proximity in time which was inadequate in and of itself. Viewed as a whole, however, the common elements in the instant case cannot be dismissed as inconsequential. All seven of the charged offenses occurred in north San Diego County. Five, including the Mottino murder, took place in the City of Vista. Except for the Mottino residence, all the residences were in isolated rural areas. All of the offenses occurred in the month of December 1977, in the late night or early morning hours. The R. burglary took place within two hours of the Mottino murder. There was evidence the same weapons and modus operandi were used. These elements in conjunction are substantial enough to "connect together" the various charges for the purpose of an accusatory pleading.

Furthermore, the joinder is permissible because the Mottino incident is of the "same class of crimes" as the other charges. The T., P., O. and R. offenses each involved charges of burglary, robbery and rape. The Mottino offense involved burglary, attempted robbery and murder. The burglary and robbery/attempted robbery charges are obviously of the same class. Stiles' contention the Mottino charges can be inferred only from the other offenses and therefore cannot be used to deny severance is invalid. The prosecution cannot be required to prove guilt before trial in order to join charges. Probable cause to bring these charges was manifest.

Severance of the murder charge would have been inappropriate since it was a felony-murder charge based on the commission or attempted commission of inherently dangerous felonies: burglary and robbery. Culpability for the death of Mottino was premised on these other charges and could not be prosecuted in their absence.

Murder and rape have been held to be of the same class of crimes because both are forms of assault against persons. (People v. Kemp, supra, 55 Cal.2d at p. 475, 11 Cal.Rptr. 361, 359 P.2d 913; People v. Walker (1952) 112 Cal.App.2d 462, 471, 246 P.2d 1009.) Stiles contends the comparison is too simplistic noting robbery and murder, both assaults against persons, have been held not to be offenses of the same class. (People v. De La Plane (1979) 88 Cal.App.3d 223, 249, 151 Cal.Rptr. 843, cert. den., 444 U.S. 841, 100 S.Ct. 81, 62 L.Ed.2d 53.) ² Forcible rape and murder are more nearly alike in that they are necessarily acts of violence. That similarity, together with the common elements of the separate offenses described above, and the counts of burglary and robbery/attempted robbery charged in each offense, are sufficient under section 954 to justify a joinder.

The denial of a motion to sever will be disturbed on appeal only if the court abused its discretion resulting in substantial prejudice to the defendant. (People v. Matson, supra, 13 Cal.3d at p. 39, 117 Cal.Rptr. 664, 528 P.2d 752.) Stiles contends the trial court's refusal to grant a severance prejudiced his defense by permitting the prosecution to use evidence of other offenses to establish, by inference, the charges of burglary and attempted robbery in the Mottino offense.

A similar argument was made in Matson. There, the court's acknowledged doubts over the rapist's identity may have been dispelled by evidence the defendant used the same modus operandi in a different burglary, just as doubts over his intent in entering the victim's apartment may have been dispelled by evidence he raped the other victim. But the Matson court dismissed the contention by pointing out Evidence Code section 1101, subdivision (b), ³ would allow the introduction of this other evidence at a separate trial of the severed counts. For this reason, appellant's claim of prejudice cannot be maintained, and because a proper basis for joinder existed under section 954, the court did not abuse its discretion by permitting the joinder.

The Jail Conversations Were Properly Admitted; De Lancie Is Not Retroactive

During Stiles' pretrial detention in the county jail, two conversations he had with his parents and a friend were monitored and tape-recorded by police investigator Decker. Edited versions of these tapes, which contained incriminating admissions, were heard at trial and transcripts were given to the jury for consideration. Stiles contends the use of these conversations was error in violation of his right to privacy (U.S. Const., 9th and 14th amends.; Cal. Const., art. I, § 1; §§ 2600 and 2601) and his right against unreasonable searches and seizures (U.S. Const., 4th and 14th amends.; Cal. Const., art. I, § 13). This appeal was held pending the Supreme Court's decision in De Lancie v. Superior Court (1982) 31 Cal.3d 865, 183 Cal.Rptr. 866, 647 P.2d 142.

In De Lancie, the California Supreme Court probed the very narrow question of whether county jail officials can monitor ostensibly private conversations between pretrial detainees and their visitors for purposes other than institutional security or public protection. (Id., at pp. 867-868, 183 Cal.Rptr. 866, 647 P.2d 142.) That careful dissection resulted in a reversal of the judgment of dismissal after the trial court sustained the defendants' demurrer without leave to amend in a civil suit brought by plaintiffs seeking injunctive and declaratory relief. The court held plaintiffs could state a cause of action under sections 2600 and 2601, but refrained from ruling on whether plaintiffs could state a cause of action on either state or federal constitutional grounds. (Id., at p. 877, 183 Cal.Rptr. 866, 647 P.2d 142.)

Whether De Lancie requires an exclusionary rule grounded on the constitution is...