*1 Dist., No. 23859. Second Div. Four. Mar. 1974.] [Crim. PEOPLE,
THE Plaintiff Respondent, STEVENS, Defendant and DWIGHT Appellant. GARY *2 Counsel Carteret, de under Stevens, W. Norman Dwight pro. per.,
Gary for Defendant Appellant. Court Appeal, appointment Hinz, Jr., General, A. Chief Assistant Edward Attorney J. Evelle Younger, General, General, James, Norman Assistant Attorney William E. Attorney General, Stoutt, for Plaintiff Attorneys A. Deputy and Bradley H. Sokolow and Respondent.
Opinion DUNN, J.Defendant with five counts of and five burglary counts of stolen Defendant “not but a receiving property.1 pled guilty” found him of four counts of and one burglary count of guilty *3 IV, VI, The court thereafter dismissed II, counts goods.2 VIII and IX and. sentenced defendant to state He has we prison. affirm. appealed; cast in several ways, defendant’s chief
Although contentions in this court his turn on that case him argument rested on the against an that that was not corroborated accomplice, sufficiently and that the was not instructed as to the effect of properly For the reasons set forth mony. below we that conclude the objections raised relate to matters either immaterial or nonprejudicial.
The had Stober, arrested a 14-year-old Brian police boy, for theft of a bicycle. During interrogation, Stober confessed to a series of burglaries in which he stated that defendant had been involved.3 Stober told the police of five of those proceeds were at burglaries defendant’s place residence. The fact of those was burglaries verified Follow- by officers.4 on ing information, that up officers went to the residence in which police defendant was a roomer. As door, they the front one officer approached see, was able to a door, through closed that defectively some articles cor- responding loot of some of the described were in the burglaries ga- rage. When defendant came to the door of the house and had identified himself, he was arrested. Officers him to his room while he accompanied changed from night clothes into street room, While in defendant’s clothing. they saw other articles to additional corresponding of some of proceeds reported burglaries.5 a Subsequently search of the house garage 1The counts were alternative charges, involving burglarious five entries and thefts. The trial court all, instructed the guilty, that it could find only defendant if at on one of the two involving counts burglary. each instruction was followed. burglaries I, 2The III, VII, counts V and being count X. The that, I, V, court instructed the burglaries, as to counts III any, were degree. in the form, second The verdicts were in with a burglary charged degree. in count VII was in the first 3It is not contended illegally that those improperly confessions were or obtained. effect, Stober testified trial to the police. same as his statements to 4Inquiry regarding burglaries burglaries the reported verified both the fact of the stealing and the by of the articles reported Stober to have been taken. The five victims testified to the same effect at the trial. dressed, proceeds 5When he put part on a watch which of the was burglary; one custody booking. that watch police was taken into at the time of No question validity serious to raised as of that seizure if the arrest was valid. and a search war- additional revealed proceeds of the landlady,6 the consent trial, de- At the room revealed more proceeds. defendant’s rant search had left with him stolen articles been that the various testified fendant Rosha, “east.” who had then gone named De loan man by security that, after de- in rebuttal testify court officer The trial police permitted had stated warnings, Miranda arrest and fendant’s prior to him had been police brought that the various articles found by Stober.7
I he a “reliable” whether an or Whether of the information, burglaries with the verification coupled informant, his resi him, going officers clearly justified reported *4 seen, 'was some of the loot When further. reported investigate dence to had an the officers existing through vantage point, opening, a legal from arresting corroboration to justify and verification enough People (1969) Berutko Cal.2d 84 (Cf., v. 71 Cal.Rptr. [77 some crime. officers into 217, 721].) entry arrested the Having 453 P.2d seizure of was lawful and the observation and he dressed his room while v. Court (Lorenzana Superior lawful. then in was sight equally articles plain 626, 585, 33].) The knowl Cal.3d 634 (1973) Cal.Rptr. 9 [108 the warrant a search of room. justified authorizing thus obtained edge introduced in were all obtained. validly It follows articles evidence was also based on Stober’s informa the arrest and warrant partly tion does not vitiate an arrest and warrant otherwise supportable.
II
law,
that
was-an
as a matter of
Assuming
Stober
despite
defendant’s denials of
and that the trial court should have so
complicity,
(the
instructed the
cases
General relies were
on which the
jury,
Attorney
codefendant,
cases in
that an in
which
was a
so
alleged accomplice
codefendant;
struction would have
to such
are
been
they
prejudicial
here;
912,
not
People
cf:
v.
(1970)
Valerio
13
point
924
Cal.App.3d
cited), nevertheless, the
and cases there
trial court did
Cal.Rptr.
[92
82]
6It
involuntary
is not
did
contended that
that
was
or that she
not have
consent
authority
excluding
to
garage
consent
search the house and
defendant’s own room.
otherwise,
7Although
agree
Attorney
we
General
that
defendant contends
testimony
in-court
testi
properly
impeach
officer’s
admitted
643].)
mony.
(1971)
1,
v. New York
91 S.Ct.
{Harris
[28
instruct the as to the effect and limitations returned, In view of the mony. verdicts found that have was an it cannot be inferred that it did not follow the instruc- accomplice; tions as The error was given. nonprejudicial.
III
from the Stober
Apart
two facts connected defendant with
testimony,
I,
III,
VII,
burglaries involved in counts
(1)
V
namely:
posses
sion
him of the
all
(2)
five
his
proceeds
false
burglaries;
statements as
(People
Spivak (1959)
thereof.8
166
acquisition
Cal.
796, 808-811
App.2d
P.2d 44].) The facts in Stober’s
[334
to connect
tending
defendant with the
were all matters
burglaries
which
be
might
true
even defendant were no more than a receiver.
How
ever,
possession
recently
articles
with false statements as
together
to their acquisition
and,
may
of theft
support
thus of burglary.
(People v.
(1962)
McFarland
IV contends the trial court erred CALJIC Appellant by giving in- by 8As indicated footnote the out-of-court statement by could be treated the court; therefore, jury indicating could, that defendant jury had lied in conclude he had made—before acquisition them—a false statement as to his and that that falsity guilty knowledge. indicated some of kind court, Additionally, jury regarding could conclude defendant’s statement in Rosha, acquisition of may the loot De was a false from one. While an inference be drawn from the out-of-court statement and from the in-court consistent knowledge with the burglary, jury’s ver- property, rather than dict question resolved this of inferences. Stober was not to find 3.14,9 it arguing struction No. permitted First, as already available. two readily There are replies an accomplice. and Stober were herein, have found that defendant observed I, HI, were not and VII and in counts V charged in crimes accomplices X, so that error the crime in count regarding accomplices that, as a matter Second, to is to assume effect. object without prejudicial be law, contrary was defendant’s which would himself, that issue as one of fact. which left V contention, to a of him the Defendant’s asked relating prose- question trial, at is without did not cutor merit. Defendant question, object move to strike the answer or ask to instruct judge either the or the disregard question answer.
This answers another contention advanced response relating to a asked of witness Stober. question
VI sentence, for consideration time fixed probation Finally, (i.e., a to have “a hearing” hearing a written motion filed his addiction to Defend- drugs). determine court department superior of Welfare addiction hearing ant narcotic provisions concedes re- do not because of the exception section 3051 Institutions Code apply (It be recalled will first contained in section 3052. degree burglary garding VH.) under of first degree burglary that defendant convicted *6 mo- in denying trial court abused its discretion Defendant argues People v. Lo Cicero However, is shown. tion. no abuse of discretion 241], defend- 71 Cal.2d relied Cal.Rptr. upon [80 ant, is not in point. himself, in briefs, attorney
In defendant’s supplemental contentions, discussion. added of which requires advanced none pro. per., (Cf., Peo the record. All are as without in rejected being adequate support aiding “Merely assenting assisting or in commis 9This instruction reads: to or criminal, knowledge person and a so guilty a is not sion of crime without or intent to, in, assisting guilty assenting aiding, of a without or the commission crime or thereto, of in the commission knowledge accomplice or is not an respect intent such crime.” ple Reeves 64 Cal.2d
The is affirmed. judgment
Jefferson, J., P. Acting concurred. KINGSLEY, J. I concur insofar as the Concurring Dissenting. decision affirms since, the conviction on X (the count), as count, to that Stober was not an and his accomplice testimony, coupled with defendant’s of the verdict. possession proceeds, supports decision affirms the four insofar counts.
I dissent burglary Nothing testimony involving Stober’s defendant in those burglaries corroborates false not explanation. explanation does necessarily except with it burglary; connect consistent with of equally guilt corroborating Since evidence connect a defendant with receiving. sort, crime and not merely criminality of some very is entitled more than proof Unlike the possibility guilt. cases relied on where defendant was majority, all he must guilty where have been or none of the burglar, special problems involved, case on resting but nothing must involve corroboration than mony greater an even-money choice by the trier fact. Court was denied
Appellant’s petition hearing by Supreme 29, 1974. May