Opinion
Rehearing Denied April 3, 1962.
Hearing Granted May 4, 1962.
Opinion vacated 26 Cal.Rptr. 473, 376 P.2d 449. Walter Emmett McFarland, in pro. per.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and A. Douglas MacRae, Dep. Atty. Gen., for respondent.
GRIFFIN, Presiding Justice.
Defendant-appellant was convicted of two counts charging unlawful taking of a motor vehicle (Veh.Code, sec. 10851), five counts charging burglary in the second degree (Pen.Code, sec. 459), and one count charging grand theft (Pen.Code, sec. 487, subd. 1). He was also found to have sustained a prior felony conviction for auto theft as alleged. Defendant was sentenced to state prison concurrent sentences were imposed on counts one and two and the term of the sentences was to be consecutive with the term of the sentences as to counts three, four, five, seven and eight which were concurrent with each other. The terms of these sentences were consecutive with that of the sentence as to count six. The trial was before a jury and defendant appeals from the judgment of conviction.
In count one of the information, defendant was charged with auto theft. The evidence pertaining to this count showed that on September 11, 1960, a convertible automobile was stolen from Frank Nunley in San Diego. Various personal belongings in the automobile were also taken. Later the same day, the car was found on a deserted road with the convertible top and other accessories missing.
Three weeks later, on September 30, 1960, Mr. Nunley saw an automobile which appeared to have his stolen convertible top on it. He informed the police of this and gave them the license number of the car. A check with the Department of Motor Vehicles disclosed that this car was registered to a Mr. Bowers. After some difficulty, the police located the defendant and interrogated him without revealing the real purpose of their desire to find the car. At first defendant refused to tell where the car was, but finally he admitted that he had previously sold the car to a Mr. Bowers. The police and Mr. Nunley then went to the Bowers residence and examined the car. Mr. Nunley again identified the convertible top as the one which had been taken from his car. Several other items of equipment on the Bowers car had also previously been on the Nunley automobile. Mr. Nunley's key fitted the door lock on the Bowers car.
Mr. Bowers told the police that he had purchased the car from the defendant a few days before and that defendant had replaced the convertible top prior to completing the sale. The police officers returned to defendant's home and placed him under arrest as he stepped outside his house in response to their request. The police then asked the defendant for permission to search his garage. At first defendant refused, but he consented when the police officers informed him that they would obtain a search warrant and maintain a watch over the garage in the interim.
Inside the garage, Mr. Nunley found his prescription sunglasses, some seat-covers stenciled with the name 'Frank Nunley,' and other articles which had been in his car when it was stolen on September 11, 1960. When they entered the garage, the officers noticed that it was full of power tools, hand tools and other mechanical equipment. Officer Wood noticed a tape recorder and labelled rolls of tape which he identified as articles stolen from a doctor's office about a week previously. Other items were also identified as property taken in recent unsolved burglaries and were seized by the police. After returning to the police station and checking burglary reports, the officers discovered that other objects in defendant's garage answered the description of property stolen in several recent burglaries.
Acting on this information, the officers obtained a search warrant and went back to the defendant's garage on the following day and seized the articles which they could identify as having been stolen.
The evidence supporting defendant's conviction of auto theft, as charged in count two, indicates that on September 17, 1960, Mercy E. Galbreath's XK-120 Jaguar automobile, bearing engine number W-21508, was stolen from the street in front of her house. The car was never found. A Jaguar engine, with serial number W-21508, was found in defendant's garage on October 5, 1960. The officers also discovered in the garage a DNV rear axle assembly which was identified by an expert mechanic as equipment which had been installed on XK-120 Jaguar automobiles.
Supporting defendant's conviction of burglary, as charged in count three, was evidence that on the evening of August 9, 1960, two typewriters, and an adding machine, bearing serial number 48495, were stolen from a doctor's office on College Avenue in San Diego. The doctor's office had been entered by removing the rear door to the office suite. The adding machine was located in defendant's garage and a typewriter fitting the description of one of those stolen was found in defendant's home.
In count four, defendant was charged with burglary. The evidence supporting this charge was that on the morning of August 23, 1960, Frank Edwards discovered that his Union Oil service station had been broken into and that a box of tools and several other articles had been stolen. On October 6, 1960, Edwards was summoned to defendant's garage by police officers. There he saw the tool box. It still contained some of the tools which had been in it when it was taken.
In counts five and six, defendant was charged with burglary and grand theft. The evidence pertaining to these counts showed that on August 31, 1960, it was discovered that an air compressor installed as part of an air conditioning system had been stolen from College Park Hospital during the previous night. This compressor was worth between $600 and $700 and was heavy and an unusual model. An air compressor of the identical type was found by the police in defendant's garage and was removed therefrom. In a later conversation with the defendant, Officer Wood asked him who had helped him remove the air compressor from College Park Hospital. Defendant made no statement and Officer Wood said, 'I know you had to have help because it took four of us to lift it onto a truck.' Defendant laughed and said, 'Well, I took it out in three pieces.'
In count seven, defendant was charged with burglary. The evidence as to this charge indicated that during the night preceding September 30, 1960, a Wollensak tape recorder, bearing serial number 82267, and several boxes of tape, were stolen from a doctor's office on Sixth Avenue in San Diego. This tape recorder and the tapes were found on a desk in defendant's garage.
The eighth count charged that defendant had committed a burglary. In support thereof, it was shown that on the morning of September 30, 1960, Harry Coultas, the owne of the CeeBee Garage on First Avenue in San Diego, discovered that his establishment had been broken into during the preceding night and that a putty knife and some some cash were missing. Investigators discovered one of defendant's fingerprints on a piece of material which had been cut from the wall of the garage office to The defendant did not take the stand to testify on his own behalf. His wife testified that neither he nor she granted the officers permission to search the garage. Officer Wood, called as a witness for the defendant, testified that he checked through various receipts for purchases found in defendant's garage. However, none of those receipts were for the items introduced into evidence.
Defendant's main contention is that the evidence presented was not sufficient to support the verdict. His argument ignores the well-established rule that when the sufficiency of the evidence is questioned on appeal, it must clearly appeal that under no hypothesis whatever is there substantial evidence to support the conclusion of the jury. The appellate court must assume in favor of the verdict the existence of every fact which the jury could have deduced from the evidence, and then determine whether such facts are sufficient to support the verdict. (People v. Tedesco, 1 Cal.2d 211, 219, 34 P.2d 467; People v. Daugherty, 40 Cal.2d 876, 885, 256 P.2d 911.) Tested by these rules, the evidence presented to the jury was sufficient.
Since there was sufficient evidence to sustain the verdict, the trial court did not err in refusing to advise the jury to acquit on any of the counts. (Penal Code, sec. 1118; People v. Wescott, 99 Cal.App.2d 711, 222 P.2d 256.) Similarly, the trial court was correct in refusing to reduce the degree of the offenses of which defendant was found guilty. (People v. Hill, 116 Cal.App.2d 212, 255 P.2d 54.)
Defendant's contention that the court committed error when it mentioned in the presence of the jury that previously two lawyers had represented defendant in the case but that they had been relieved of their duties and defendant desired to conduct his own defense is obviously without merit. This comment of the court could not have in any way prejudiced the defendant in the eyes of the jury. Furthermore, the defendant made no objection to the comment when it was made and he may not now for the first time raise the point on appeal.
Defendant urges that the trial court committed error in refusing to subpoena two witnesses from the State of Washington. On the day before the trial began, the defendant advised the calendar department of the superior court that he wanted to subpoena two witnesses from the State of Washington pursuant to Penal Code, section 1334.3. At that time, defendant had made no showing as to the expected testimony of these witnesses and its materiality. In his brief, defendant asserts that declarations containing this information were prepared and sent to the court to which the motion had been made. However, the defendant has not described the contents of these declarations in his brief and they are not contained in the appellate record. This matter was again briefly mentioned at the trial (which was before another judge), but defendant did not ask the trial judge to issue the certificate required by Penal Code section 1334.3, supra. We must conclude that defendant abandoned his attempt to obtain the witnesses. He did indicate to the trial judge that the witnesses would identify the source from which he, the defendant, obtained the convertible car top which Mr. Nunley identified as being taken from his car. In view of the strength of the evidence supporting defendant's conviction on this count, it is difficult to conceive that the jury could have attached much weight to testimony to the effect that the top on Mr. Bower's car had not come from Mr. Nunley's car.
Defendant also urges that the trial court erred in compelling him to make an offer of proof as to what he would prove by the testimony of certain witnesses. It was revealed that defendant intended to prove that after he had been arrested and released on bail in connection with the present charges, he was again arrested by People v. Monson,
People v. Jones,Defendant argues that the trial court admitted items into evidence which were not sufficiently identified as property taken during the burglaries. He particularly objects to the admission of a picture of the rear axle found in his garage, a typewriter taken from a doctor's office in one of the burglaries, and a tool-box which had been taken from a garage. In each instance, other items taken during the same burglary or theft were identified positively by serial numbers or other identifying labels. An examination of the record reveals that the items which defendant objects to were sufficiently identified to justify their admission into evidence. In any event, there was no prejudice to defendant because other items taken during the same offenses were positively identified and received in evidence. The evidence objected to was merely cumulative.
Defendant urges that the items seized in his garage on October 5, 1960 should not have been received in evidence because they were obtained during an unlawful search. This contention cannot be sustained. There is evidence in the record establishing that the defendant consented to the search of his garage and that his consent was freely given. The testimony of Mrs. McFarland merely created a conflict on this issue, which was resolved by the ruling of the trial court, and we cannot say that the ruling is not supported by evidence and it must therefore be sustained. (People v. Michael, 45 Cal.2d 751, 754, 290 P.2d 852; People v. Burke, 47 Cal.2d 45, 49, 301 P.2d 241.)
Defendant voices many objections to the conduct and argument of the prosecuting attorney. We have examined each of these objections with care and find that they are without merit. On one occasion, defendant claims that the prosecuting attorney made statements which should not have been made and which damaged defendant's case. However, the record clearly indicates that these assertions were made to the court outside the presence of the jury and therefore were proper and could not have damaged defendant's cause in the eyes of the jury. Defendant contends that the prosecuting attorney committed misconduct when he suggested that the jury be allowed to view the convertible top and then did not renew the offer later when the trial judge suggested that the viewing be delayed pending an improvement in weather conditions. Obviously, here again defendant's case was not prejudiced by the prosecution's failure to insist that this viewing take place. Defendant could himself have asked that the jury be allowed to view the automobile. He did not do so. Aside from the convertible top, there was other, stronger evidence that the Nunley car had been stripped in defendant's garage within a period of some six hours after it had been stolen and that several parts from the Nunley car were later found on a car which defendant had sold to Mr. Bowers. Defendant makes In counts five and six, defendant was charged and convicted of burglary and grand theft. Both these offenses were alleged to have occurred in connection with the entry into College Park Hospital and the taking therefrom of the air compressor. Defendant contends that, by sentencing him to consecutive sentences on these two counts, the lower court imposed double punishment for a single offense. Penal Code, section 654, provides in part:
'An act or omission which is made punishable in different ways by different provisions of this Code may be punished under either of such provisions, but in no case can it be punished under more than one * * *.'
In Neal v. State, 55 Cal.2d 11, 19, 9 Cal.Rptr. 607, 611, 357 P.2d 839, 843, the Supreme Court considered the application of this statute. The court said:
'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.'
The case of In re Dowding, 188 Cal.App.2d 418, 423, 10 Cal.Rptr. 392, the court held that a defendant who entered a store and assisted his confederates in the commission of an armed robbery could be convicted of either burglary or robbery, but he could not be punished for both offenses. The court there stated that the decision in Neal v. State, supra, 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839, impliedly overruled a line of decisions which had held that one who commits robbery or burglary after entering a dwelling or store with intent to commit either of these crimes may be convicted and sentenced for both burglary and robbery or larceny. The recent case of People v. Dykes, 198 A.C.A. 74, 79, 17 Cal.Rptr. 564, held that one who entered a dwelling and accomplished his aim by stealing a box containing money could not be punished for both burglary and grand theft. The judgment appealed from is therefore modified by striking therefrom that part thereof finding that the defendant has been convicted of and should be punished for grand theft, as charged in count six of the information, and that defendant should serve a consecutive sentence thereon with the other sentences imposed. (People v. Pearson, 150 Cal.App.2d 811, 822, 311 P.2d 142.)
The judgment is affirmed as modified.
SHEPARD and COUGHLIN, JJ., concur.