People v. Salazar
| Decision Date | 23 November 1962 |
| Docket Number | Cr. 7651 |
| Citation | 210 Cal.App.2d 89,26 Cal.Rptr. 456 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Armando Gonzales SALAZAR, Defendant and Appellant. |
Gladys Towles Root and Eugene V. McPherson, Los Angeles, for appellant.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Jack K. Weber, Deputy Atty. Gen., for respondent.
Defendant Salazar appeals from his judgment of conviction on three counts of receiving stolen property (Penal Code, section 496). The first count involved a grinder; the second, an electric drill; and the third, three auto tires and wheels. 1 He was sentenced to the state prison.
For some five years defendant had conducted a body and fender shop at 4700 Floral Drive in East Los Angeles. Edward Womack had been employed at the Baker Metal Finishing Company in Monterey Park. While so employed, he stole from the company the items involved in Counts I and II. He had known defendant for approximately a year and had assisted the mechanics at defendant's body shop upon occasion and had also worked on his own car there. He sold the grinder to defendant in the early part of 1960 for approximately ten dollars. Some months later he sold defendant the electric drill for eight dollars. Womack denied that he ever told defendant that either of these items had been stolen.
The tires and wheels involved in Count III were purchased from Jimmy Resa and Isadore Lopez on May 5, 1960. These items had also been stolen. Resa had known defendant for three or four years but had not seen him for approximately a year prior to November 1959. At that time he had a conversation with defendant about getting some property. Resa told Salazar that he was out again, using stuff [narcotics] and starting to hustle again. Resa had two or three new tires and wheels which he sold to Salazar for ten dollars each. During the course of this conversation defendant remarked to Resa, 'Well, it is good to see you because I had been getting stuff from other guys, they only used to bring one tire, or it would be used tires.' He then stated, 'I will let you know later what I want.' Resa thereafter brought in an average of two or three tires a day to defendant. He also brought other stolen merchandise and sold it to defendant, such as TV set, a Polaroid camera and tools. Lopez usually assisted Resa in the thefts. On May 4, the day before the incidents involved in Count III, Salazar told Resa that he was bringing in too many tires with Ford rims, that he needed tires with Chevy rims. Resa informed him that Chevies were harder to get; that 'I had tried to get them, but I couldn't promise him.'
When Resa and Lopez drove in on the morning of May 5, Resa told Salazar that he had 'the tires he wanted.' Salazar asked him what he had. Resa told him he had two Fords and a Chevy. Salazar then inquired, 'What happened, couldn't you get the other Chevy?' Resa told him, 'No * * * I couldn't pick it up.' Salazar said, 'Well, let me look at the tires.' Resa opened the trunk of his car and showed Salazar the tires. After some haggling, they agreed on $23.00 for the three. Garcia then came out and helped Resa put the tires in the trunk of another car. Salazar gave Lopez the $23.00.
At that time the police had Salazar's establishment under surveillance and saw Resa and Lopez drive up. The officers observed a conference between Resa, Lopez and Salazar and also observed Resa open the trunk of his car and all look in it. A few minutes later Salazar handed something to Lopez. Resa then took the tires out of the trunk of his car while Garcia assisted him in putting them into another car. At this point the police appeared and placed the men under arrest. The officers took some money from Lopez's shirt pocket and exhibited it to Salazar. They asked him if he had given it to Lopez. He stated he knew nothing about the money. Defendant claimed that the grinder had been given to him by Womack who used to work for him and had left it when he quit and that he hadn't seen the electric drill previously. He denied having talked to Resa and Lopez and denied having seen or purchased the tires in question.
Defendant's initial contention is that the court committed prejudicial error in failing to give the jury certain requested instructions on circumstantial evidence.
The gist of the offense of receiving stolen property is the purchase or receipt thereof with knowledge that it was stolen. (42 Cal.Jur.2d, § 6, Receiving Stolen Property, p. 410.) '[I]t is not essential that such knowledge be actual and positive; it may be circumstantial and deductive.' (People v. Bycel, 133 Cal.App.2d 596, 599, 284 P.2d 927, 930.)
With respect to the grinder and the electric drill (Counts I and II), the People, in their effort to establish that defendant knew these items had been stolen, relied almost wholly upon circumstantial evidence. In such a case it is incumbent upon the court to instruct the jury that to justify a conviction the facts or circumstances must not only be entirely consistent with the theory of guilt but must be inconsistent with any other rational conclusion. (People v. Candiotto, 128 Cal.App.2d 347, 356, 275 P.2d 500; People v. Yokum, 145 Cal.App.2d 245, 252, 302 P.2d 406; People v. Zerillo, 36 Cal.2d 222, 233, 223 P.2d 223; see also, People v. Hatchett, 63 Cal.App.2d 144, 155, 146 P.2d 469 and People v. Rayol, 65 Cal.App.2d 462, 464, 150 P.2d 812, both cited with approval in People v. Bender, 27 Cal.2d 164, 175-176, 163 P.2d 8.) Counsel for defendant requested appropriate instructions on this facet of the case but the trial court rejected each of them and failed to give any instruction touching the question of circumstantial evidence. 2 It was clearly prejudicial to thus fail to instruct the jury for there was no substantial direct evidence that defendant knew that either of the items in Counts I and II had been stolen. Thus the requested instructions became vital to the case for it was essential that the jury understand and apply the principles embodied in the proposed instructions on circumstantial evidence. The failure to properly direct the jury in this important aspect of the case was not only error but prejudicial and requires a reversal of the conviction on these two counts.
Implicit in the jury's verdict on Count III is their acceptance of the testimony of Resa and Lopez from which it unmistakably appears that Salazar knew the tires and wheels in question were stolen. So, as to this count, circumstantial evidence played a minor role in defendant's conviction. Therefore the failure to give instructions on circumstantial evidence was not prejudicial.
But, argues defendant (as to the third count), Resa and Lopez were accomplices of defendant, hence their evidence required corroboration to sustain his conviction on that count (sec. 1111, Penal Code). He then argues that there is no corroborative evidence of their testimony. The statement of this court in People v. Polsalski, 181 Cal.App.2d 795 pp. 797-798, 5 Cal.Rptr. 762 p. 764, is apposite on this point: 'It is settled law that the thief is not an accomplice of the receiver of stolen property unless the theft and the passing of the property to the alleged receiver of stolen goods were accomplished pursuant to an advance conspiracy to do those things. People v. Lima, 25 Cal.2d 573, 576, 154 P.2d 698, 700: ...
To continue reading
Request your trial
-
People v. Chimel
...indicate defendant 'received' the property or if 'received', defendant's knowledge that the property was stolen. (See People v. Salazar, 210 Cal.App.2d 89, 26 Cal.Rptr. 456; People v. Boyden, 116 Cal.App.2d 278, 253 P.2d 773; People v. McClain, 115 Cal.App. 512, 1 P.2d 1023.) It follows the......