*1 felony illegal of a and therefore the search and seizure thereby held obtained should be inadmissible under the rule in the Cahan ease.
I would therefore reverse the and remand new so that case for a trial the trial court would have pass opportunity upon the reasonableness the search might presented which then in the view be light case and other of the decision this court Cahan involving subject cases this same matter since the decision court the Cahan case. this In No. 5779. Bank. Feb. 1956.]
[Crim. CITRINO, PEOPLE, Respondent, THE ANTHONY Appellant. *3 E. under Tarbox, Robert per., and Citrino, pro.
Anthony prior Appeal of to transfer Court by District appointment the Appellant. for appeal, the of Brown, Attorney General,
Edmund G. Linn, Clarence A. Attorney General, Raymond Chief Assistant and M. Mom- Attorney boisse, Deputy for General, Respondent. TRAYNOR, J. appeals Defendant from a of jury conviction entered on a finding guilty verdict him of degree burglary. two counts of second 3, 1954, early of During evening morning the June the or 4th, premises the June William and Frederick Motors burglarized. automobile, in San Francisco were An various garage equipment, battery, items of a and tools were taken. 5, 1954, early During evening morning the of June or the 6th, premises of Motor of June Pacific Nash Sales were containing burglarized. An a safe the com- automobile and pany’s ownership automobile certificates were records and days Ralph Astengo, A few later defendant sold to taken. equipment operator, and some tools a service station and their em- belonging William and Frederick Motors below the market price $25 The sale was much ployees. Astengo Defendant told items sold. value ‘‘ equipment tools and got from and that them [he] ...” Astengo requested father. and received a bill of sale defendant, signed from “Anthony who with name Colla.” He returned in changed about five minutes and signature “Anthony trial, however, Cotelli.” theAt de- acquaintance fendant testified an named Cotelli Gino gave him equipment tools and not and that he did know where was. Cotelli When arrested was he he asked if had sold property under the alias of Cotelli and he refused to answer. He he admitted that had Avenue lived at in San Anthony Francisco under the name of He Colla. Bragg testified he Bill and shared this house with Gino Cotelli, and that three of them moved of the out house on Inspector June 17th because him told informant Keating Department of the San Francisco looking Police was for Bragg. Inspector Before arrest, defendant’s Keating other premises officers searched the and defend- automobile, parked nearby. They ant’s which was found property burglaries garage taken both and on the porch back and in the basement of a the house. On mantel- piece, together personal papers, some defendant’s they ownership found a number of the stolen certificates. On July 9th, tools stolen from William and Frederick Motors liquor Oakland, were found in a following burglary store automobile, purchased An by thereof. under defendant name Jennings parked of Robert a service station adjacent liquor to the store. motor and hood were warm. gave testified he on Bragg the car to about July 6th, he not burglaries, did commit the by found the officers Second Avenue was put Cotelli, there and that he did not know how the ownership got mantelpiece. certificates onto the illegally contends
He obtained ad against him. this mitted Since was tried case before our Cahan, 44 905], decision in Cal.2d question raising precluded although he is this now object admissibility did not evidence at the *4 260 (People Kitchens, p. 17].) v. P.2d ante, trial. [294 however, record, is silent as to whether the officers warrant, any had and in the absence of a search evidence illegality search, presume we showing must lawfully performed regularly the officers their duties. ante, p. 265 P.2d Farrara, 21]; Code Civ. (People v. [294 People Serrano, 1963(1), (15), (33); Cal.App. v. 123 Proc., § 288 Vaughn
339, 81]; Jonas, 341 P.2d see also 31 Cal.2d v. [11 586, 432].) argues 601 P.2d Defendant if even [191 they any authority had a exceeded officers search warrant might Code, they give (see 1524) it them Pen. when took § showing purchase his a the auto conditional sales contract liquor near mobile found store Oakland. Since presence to the could testified of the contract officers have removing house thus from the have shown without it automobile, prejudiced by ownership of was not (Cf. People into of the contract itself. evidence admission 652, 535].) P.2d 654 Boyles, 45 Cal.2d v. [290 the evidence commission of contends that liquor burglary store, of the Oakland crime, the another It is now “settled in this state erroneously admitted. merely criminal disposition, shows evidence except when it reasonable inference logically and establish which tends prosecution, any or to overcome any material for fact by the sought proved defense, is to be admissible material fact may accused with an offense not in although connect the Woods, v. 35 Cal.2d 509 charge.” (People 504, cluded in the possession of 981].) Defendant’s the stolen P.2d [218 fact, and the evidence that some of the material tools was a early morning in a store under found tools were indicating they recently had been aban- circumstances recently fact that defendant’s driven coupled doned with the parked nearby was circumstantial evidence automobile was possession the tools. had that defendant been in contention is the evidence is main Defendant’s argues He there is support the verdict. sufficient to burglaries record to connect nothing in the prop sale of some of the stolen other than Astengo. Possession alone of erty stolen posses of itself sufficient to sustain the burglary is not corroborating burglary. There must be sor’s conviction acts, conduct, or declarations of the accused evidence guilt. (People Boxer, 562, v. 137 Cal. tending to show his People Carroll, 146, ; Cal.App.2d v. 79 563-564 P. 671] [70 possession 75].) shown, 148 P.2d When is how [179 may corroborating slight (People v. ever, be Taylor, Cal.App. 402, 679]; 404 P.2d v. Morris, 124 [12 ; People Russell, v. 34 Cal.App.2d 217 P.2d 214, [40 870] Thompson, 400]; People Cal.App.2d P.2d [94 and the failure Cal.App.2d 359, 1019]), possession honestly itself a obtained is show
289
tending
possessor’s
strong
guilt
to
circumstance
show the
(People
burglary.
Lang,
482,
the
142 Cal.
484-485
v.
[76
People
Taylor,
Cal.App.2d
4
;
supra,
214, 217.)
P.
v.
232]
gave
explanation
prop
that Cotelli
him
Defendant’s
erty
by any witness, but in
was not contradicted
view
own use of
name and the fact
he did
defendant’s
that
that
jury
at
trial,
know where Cotelli was
time
reasonably
gift
could
his
conclude
Cotelli and
were both
(People
Buratti,
Cal.App.2d 417,
v.
96
418-419
fictitious.
500].)
P.2d
Other corroborative
was his false
[215
Astengo
statement
he
to
received the
People
Cal.App.2d 184,
his
185
(see
Conrad,
father
125
v.
; People Goodall,
Cal.App.2d 242,
P.2d
104
v.
247
[270
31]
; People Mercer,
Cal.App.2d 782,
P.2d
v.
789
[231
119]
; People
Buratti, supra,
417,
P.2d
96 Cal.App.2d
v.
[230
4]
419; People
Russell,
Cal.App.2d
v.
supra,
665, 669),
his
selling
for
equipment
tools
worth more than $150
$25
(see People
using
v.
his
Buratti, supra,
419),
at
the aliases
“Anthony
“Anthony
in making
Colla” and
Cotelli”
the sale
(see People Buratti,
supra,
419;
Morris, supra,
v.
v.
testimony
and in Ms flight Inspector he heard reason for when defendant’s attorney looking for district asked de Keating him, the why at the fendant he abandoned an automobile Second Ave objection and Upon defendant’s the court’s nue residence. afield, the examination somewhat observation attorney your stated, “Well, Honor, the car was district carefully avoiding The man was seen at Avenue. burglary.” The that defendant after the observation address *6 “carefully avoiding in address” was a reasonable testimony because ference defendant’s own left looking for police him, and even if the statement car seen at Avenue” was “somewhat that “the at afield,” justify The district it would not reversal. yon jury, “Here torney’s argument to in statement part of 22 age has devoted latter have a man who years supported to a life of crime” was not im jury, however, was improper. The and was therefore light of it, and in the mediately disregard instructed verdict. affected their whole record we do not believe affirmed. is McComb, J., Schauer, Spence, J., and Gibson, J., J., C. judgment. J., concurred Shenk, concurred. judgment of affirmance but concur in the CARTER, J.I majority opimon is in the agree I do with what said not People Woods, respect 35 Cal.2d the rule announced I I 981], in case dissented. do which analogous Woods case are believe that facts n rely necessary to at bar' or that it is case facts authority for the conclusion reached on case as the Woods case at bar.