People v. Citrino

• Decision Date: 24 February 1956
• Docket Number: Cr. 5779
• Citation: 46 Cal.2d 284,294 P.2d 32
• Court: California Supreme Court
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Anthony CITRINO, Defendant and Appellant.

Page 32

294 P.2d 32

46 Cal.2d 284

The PEOPLE of the State of California, Plaintiff and Respondent, v. Anthony CITRINO, Defendant and Appellant.

Cr. 5779.

Supreme Court of California, In Bank.

Feb. 24, 1956.

Anthony Citrino, in pro. per., and Robert E. Tarbox, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Chief Asst. Atty. Gen., and Raymond M. Momboisse, Deputy Atty. Gen., for respondent.

TRAYNOR, Justice.

Defendant appeals from a judgment of conviction entered on a jury verdict finding him guilty of two counts of second degree burglary.

During the evening of June 3, 1954, or the early morning of June 4th, the premises of William and Frederick Motors in San Francisco were burglarized. An automobile, various items of garage equipment, a battery, and tools were taken. During the evening of June 5, 1954, or the early morning of June 6th, the premises of Pacific Nash Motor Sales were burglarized. An automobile and a safe containing the company's records and automobile ownership certificates were taken. A few days later defendant sold to Ralph Astengo, a service station operator, some of the tools and equipment belonging to William and Frederick Motors and their employees. The sale price of $25 was much below the market value of the items sold. Defendant told Astengo that the tools and equipment were his and that '(he) got them from his father. * * *' Astengo requested and received a bill of sale from defendant, who signed it with the name 'Anthony Colla.' He returned in about five minutes and changed the signature to 'Anthony Cotelli.' At the trial, however, defendant testified that an acquaintance named Gino Cotelli gave him the tools and equipment and that he did not know where Cotelli was. When arrested he was asked if he had sold property under the alias of Cotelli and he refused to answer. He admitted that he had lived at 345 Second Avenue in San Francisco under the name of Anthony Colla. He testified that he shared this house with Bill Bragg and Gino Cotelli, and that the three of them moved out of the house on June 17th because an informant told him that Inspector Keating of the San Francisco Police Department was looking for him and Bragg. Before defendant's arrest, Inspector Keating and other officers searched the premises and defendant's automobile, which was parked nearby. They found property taken in both burglaries in the garage and on the back porch and in the basement of the house. On a mantelpiece, together with some of defendant's personal papers, they found a number of the stolen ownership certificates. On July 9th, tools stolen from William and Frederick Motors were found in a liquor store in Oakland, following a burglary thereof. An automobile purchased by defendant under the name of Robert Jennings was parked in a service station adjacent to the liquor store. The motor and hood were warm. Defendant testified that he gave the car to Bragg on about July 6th, that he did not commit the burglaries, that the property found by the officers at 345 Second Avenue was put there by Cotelli, and that he did not know how the ownership certificates got onto the mantelpiece.

He contends that illegally obtained evidence was admitted against him. Since this case was tried before our decision in People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, he is not precluded from raising this question now although he did not object to the admissibility of the evidence at the trial. People v. Kitchens, Cal.Sup., 294 P.2d 17. The record, however, is silent as to whether the officers had a search warrant, and in the absence of any evidence showing the illegality of the search, we must presume that the officers regularly and lawfully performed their duties. People v. Farrara, Cal.Sup., 294 P.2d 21; Code Civ.Proc. § 1963 (1, 15, 33); People v. Serrano, 123 Cal.App. 339, 341, 11 P.2d 81; see also, Vaughn v. Jonas, 31 Cal.2d 586, 601, 191 P.2d 432. Defendant argues that even if the officers had a search warrant they exceeded any authority it might give them (see Penal Code, § 1524) when they took a conditional sales contract showing his purchase of the automobile found near the liquor store in Oakland. Since the officers could have testified to the presence of the contract without removing it from the house and thus have shown his ownership of the automobile, he was not prejudiced by the admission into evidence of the contract itself. Cf. People v. Boyles, 45 Cal.2d 652, 290 P.2d 535.

Defendant contends that the evidence of the commission of another crime, the burglary of the Oakland liquor store, was erroneously admitted. It is now 'settled in this state that except when it shows merely criminal disposition, evidence which tends logically and by reasonable inference to establish any fact material for the prosecution, or to overcome any material fact sought to be proved by the defense, is admissible although it may connect the accused with an offense not included in the charge.' People v. Woods, 35 Cal.2d 504, 509, 218 P.2d 981, 984. Defendant's possession of the stolen tools was a material fact, and the evidence that some of the tools were found early in the morning in a store under circumstances indicating that they had been recently abandoned coupled with the fact that defendant's recently driven automobile was parked nearby was circumstantial evidence that defendant had been in possession of the tools.

Defendant's main contention is that the evidence is insufficient to support the verdict. He argues that there is nothing in the record to connect him with the burglaries other than the evidence of his sale of some of the stolen property to Astengo. Possession alone of property stolen in a burglary is not of itself sufficient to sustain the possessor's conviction of that burglary. There must be corroborating evidence of acts, conduct, or declarations of the accused tending to show his guilt. People v. Boxer, 137 Cal. 562, 563-564, 70 P. 671; People v. Carroll, 79 Cal.App.2d 146, 148, 179 P.2d 75. When possession is shown, however, the corroborating evidence may be slight, People v. Morris, 124 Cal.App. 402, 404, 12 P.2d 679; People v. Taylor, 4 Cal.App.2d 214, 217, 40 P.2d 870; People v. Russell, 34 Cal.App.2d 665, 669, 94 P.2d 400; People v. Thompson, 120 Cal.App.2d 359, 363, 260 P.2d 1019, and the failure to show that possession was honestly obtained is itself a strong circumstance tending to show the possessor's guilt of the burglary. People v. Lang, 142 Cal. 482, 484-485, 76 P. 232; People v. Taylor, supra, 4 Cal.App.2d 214, 217, 40 P.2d 870. Defendant's explanation that Cotelli gave him the property was not contradicted by any witness, but in view of defendant's own use of that name and the fact that he did not know where Cotelli was at the time of the trial, the jury could reasonably conclude...