People v. Adams
| Citation | 66 Cal.Rptr. 161,259 Cal.App.2d 109 |
| Decision Date | 19 February 1968 |
| Docket Number | Cr. 6239 |
| Court | California Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. James Marshall ADAMS and Elmer Donald Clegg, Defendants and Appellants. |
Ronald H. Kahn, San Francisco, for appellants (under appointment of the Court of Appeal).
Thomas C. Lynch, Atty. Gen., Michael J. Phelan, James A. Aiello, Deputy Attys. Gen., San Francisco, for respondent.
Defendants Adams and Clegg have severally appealed from judgments of conviction which sentenced each to state prison following jury verdicts which found both guilty of burglary in the second degree. (Pen.Code, §§ 459, 460.) Each contends that the evidence is insufficient to sustain his conviction, and that the court prejudicially erred in permitting the prosecutor to impeach a witness called for the People by the use of a prior inconsistent statement which incriminated the defendants. A further contention, that each was wronged by the failure of the court to grant his motion for new trial, is encompassed within the foregoing contentions and needs no separate consideration.
An examination of the record reveals ample evidence to support the convictions, and establishes that although there may have been irregularities in permitting the impeachment of the witness, and in the manner in which the impeachment was conducted, there was no prejudicial error. The judgment must be affirmed.
At about 5:25 a.m., on August 14, 1966, Humboldt County Deputy Sheriffs Gritts and Ayer observed a man apparently fleeing 1 from the Blue Lake Speedwash, in Blue Lake, California. The officers drove to the door of the laundromat, observed, without leaving their patrol car, that the door was standing open and had been 'hacked up,' and then followed and stopped the car entered by a fleeing person.
When the officers stopped the car, which they testified they had constantly kept in view, after seeing it in the parking area of the laundromat, and which they stated was the only car they observed on the road that morning, they observed defendant Clegg, the man they identified as the person they had seen fleeing from the laundromat in the driver's seat, defendant Adams in the rear seat behind the driver, and two women, one in the front and one in the rear seat. The officers, aided by other members of the deputy sheriff's staff who had responded to a call for assistance, placed the occupants of the car under arrest. In the ensuing search of the defendants, and the interior of the car they found 23 dimes, one nickel, and one penny on defendant Clegg, six quarters, three dimes, three nickels and three pennies on defendant Adams, three screwdrivers, one with a sharp point, a solid metal hammer and a kitchen knife on the floor behind the driver's seat, and a pair of leather gloves either on the front or rear seat.
At the trial, the owner of the Blue Lake Speedwash testified that he was at his laundromat on August 13, 1966, at 3 or 4 p.m., and that he emptied the coin boxes of the various washers, dryers, soap and coffee machines. He indicated that his examination of the machines, following the burglary, showed that exactly $2.30 worth of dimes were missing from a soap dispensing machine that he had not emptied. He declared he could calculate the number of dimes from the number of soap boxes missing from the machine. He also testified that a hair dryer took quarters, but since it belonged to the vending machine company he could not say how much was missing from it.
An employee of the laundromat testified that on the evening of August 13, 1966, she came to the laundromat, cleaned it, and closed the premises at about 11 p.m. She indicated that no one was inside the laundromat when she left, and that all of the windows and doors were locked.
At the trial, Carolyn Faye Poole was called as a witness by the district attorney. Miss Poole was one of the women arrested with the defendants. She indicated that she and defendant Adams were asleep in the car during the time of the alleged burglary, and that if the burglary had taken place it was unlikely that she would have been able to sleep through it. She also testified that the defendants had used the tools found in the car to work on the generator or voltage regulator of the car. The district attorney was allowed to impeach this witness on the basis of a prior inconsistent statement given to him on October 20, 1966. The circumstances of the impeachment will be considered in a discussion of that issue.
The defendants did not testify or offer any evidence in their own defense.
The defendants, in challenging the sufficiency of the evidence, rely upon those pronouncements in People v. Hall (1964) 62 Cal.2d 104, 41 Cal.Rptr. 284, 396 P.2d 700, which require the reviewing court to reject "inferences sought to be derived from weak and inconclusive sources" when they are contrary to "otherwise indubitably established facts." (62 Cal.2d at p. 110; and see id., p. 112, 41 Cal.Rptr. 284; 396 P.2d 700, 703; and People v. Singh (1936) 11 Cal.App.2d 244, 250--254, 53 P.2d 403.) They contend that the verdicts against them are predicated upon mere conjecture and suspicion. (People v. Garcia (1962) 201 Cal.App.2d 589, 594, 20 Cal.Rptr. 242; People v. Rascon (1954) 128 Cal.App.2d 118, 122, 274 P.2d 899; People v. Alkow (1950) 97 Cal.App.2d 797, 802--803, 218 P.2d 607; and People v. Draper (1945) 69 Cal.App.2d 781, 786, 160 P.2d 80.)
Attention has been directed to inability of the officers to detail the number and identity of the occupants of the automobile when it was at the scene of the crime. The evidence does show that the car was kept under surveillance for substantially all of the time when it was first observed until it was stopped, and that no one, other than Clegg, was seen to leave or enter it during this time. The inference is permitted, if not compelled, that the four persons who were taken into custody had been present at the burglarized laundromat.
There is no absolute inconsistency between the failure to count or identify the other occupants of the car, and the ability of both officers to identify Clegg as the person who ran out of the laundromat and entered the driver's seat in the car. The claimed deficiencies in the lighting in the area of the laundromat, and the alleged physical impossibility of correlating the testimony concerning the movement of the respective cars of the accused and of the police with the testimony relating to the places where observations were made were matters to be considered by the triers of fact.
The situation is governed by the recent decision in People v. Roberts (1967) 256 A.C.A. 537, 64 Cal.Rptr. 70, where this court said:
Similar considerations apply to the argument that the absence of proof of the exact amount taken from each coin machine in the laundromat, and an alleged inconsistency in the testimony concerning the number of dimes on the person of Clegg render the evidence that he had in his possession the same number of dimes that were missing from the soap machine bereft of all probative value.
Defendants further complain that there was no evidence to connect the tools in the car with the entry into the laundromat. The prosecution produced photographs depicting the damage to the door and to three coin machines. It was not necessary to introduce expert testimony to show that the tools inflicted the marks on the damaged property. The tools were admissible if they were reasonably adopted to the performance of the entry which was effected. (People v. Wilson (1965) 238 Cal.App.2d 447, 463, 48 Cal.Rptr. 55; and see People v. Gautt (1961) 190 Cal.App.2d 355, 357, 11 Cal.Rptr. 805.) 2
The defendant Adams additionally relies on the following principle: 'Neither presence at the scene of the crime, nor failure to take steps to attempt to prevent a crime, establish that a person is an aider or abettor.' The courts, however, have uniformly recognized and applied the following rule: ...
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