People v. Alvarez

• Decision Date: 26 July 1965
• Docket Number: Cr. 2232
• Citation: 236 Cal.App.2d 106,45 Cal.Rptr. 721
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Carlos ALVAREZ, Defendant and Appellant.

Page 721

45 Cal.Rptr. 721

236 Cal.App.2d 106

The PEOPLE of the State of California, Plaintiff and Respondent, v. Carlos ALVAREZ, Defendant and Appellant.

Cr. 2232.

District Court of Appeal, Fourth District, California.

July 26, 1965.

John Stanton, Oceanside, under appointment by District Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Leslie F. Bell, Deputy Atty. Gen., for plaintiff and respondent.

CONLEY, Justice. ^*

The defendant, Carlos Alvarez, was convicted of burglary. He was granted probation subject to certain conditions, but has nevertheless appealed.

There is ample evidence to warrant his conviction. The burglarized place of business is a television and appliance repair shop in Oceanside conducted by Myron T. Coleman, Jr.; the building is a converted warehouse with a conventional front door and a rear overhead door. In his business, Mr. Coleman uses a white truck with the words 'Coleman's Service' stenciled on it. On Saturday, September 19, 1964, he closed the shop at 12:15 p. m. and personally locked all the doors, leaving the truck parked in front of the store with the keys in a desk inside the building.

When Mr. Coleman and his son returned to the repair shop the next day between 11 and 11:30 a. m., they noticed that the security patrol card was not in its usual position in the door jamb but had fallen to the ground; this was indicative of the fact that someone had opened the door after the store had been closed. Mr. Coleman had given no one permission to enter the building between the closing time on Saturday and when it was opened on Sunday. The proprietor found that there were some articles missing, including four rings, a radio and 3 television sets, consisting of a charcoal grey Westinghouse, a brown set, and a new bright gold Magnavox with a handle on the top. The rings had been left in their boxes in a larger cardboard box when the shop was closed. The missing radio was a G. E. 'Cross-Country' transistor model which he had received for repair on the previous day. Further investigation by Mr. Coleman revealed that a pair of greasy khaki-colored Marine-type overalls, which had been worn by one of the workmen in the shop, was missing.

The truck which had been left at the front of the store was gone also, and its keys were not where Coleman had left them when he close the place of business on Saturday.

A neighbor called Mr. Coleman's attention to the fact that there were several cartons propped up against the side of the building within about five feet of a window which opened outward and which was wide enough to permit a man to crawl through it. Mr. Coleman did not see his truck again until September 21st when he visited the junk yard where it was impounded. It had been discovered by the police up a dirt road in a deserted part of the town.

One Elidia Najera, who lives in Oceanside with her brother-in-law and sister, the Fred Felans, testified that on the morning of September 20, 1964, at about 6 a. m., the defendant, Carlos Alvarez, knocked at the door of the residence. He was wearing Marine-style khaki coveralls which were greasy and dirty; he said he wanted to speak with Fred Felan and appellant was taken into their bedroom.

Enedina Felan, Fred's wife, testified that early that Sunday morning appellant came to her house and entered the bedroom shared by her and her husband. She recognized his voice but did not actually see him, as she was 'half-asleep.' He asked if he might leave some articles in the garage, and she said, 'Yes.' The Felans were well-acquainted with Alvarez and they had been with him and his wife on the night before, having driven into town in appellant's Cadillac car; they had stayed awhile in a bar and the Felans then returned in a taxi to their residence.

Later that Sunday morning, Mrs. Felan looked into her garage before her husband had a chance to do so, and she then noticed some television sets covered by a blanket, which had not been in the garage the day before. Later, Mrs. Felan also discovered a transistor radio which was People's Exhibit 4, in a corner of the garage under a sea bag. She took it into the kitchen and telephoned the police. They took it from her and it was introduced into evidence at the trial. She also found a blue book under the sea bag which she gave to the police.

Her husband, Fred Felan, testified that Carlos Alvarez talked with him on Sunday, September 20th, around noon at his home. Before that time on that morning, Felan had been in his garage and he then noticed a transistor radio under a blanket, together with 3 television sets, and a TV repair book that had not been there before that date. Mr. Felan said he did not know how the television sets got there, but he recognized People's Exhibits 1 and 3 being similar to the sets he had seen in his garage on September 20th. He talked with appellant on the Sunday in question about the television sets, and the appellant stated that he got them from his boss and was going to repair them to be sold at a low price. On that same day in the evening, while Felan watched, appellant removed the television sets from the garage.

A police officer, Richard Green, talked with Mr. Coleman regarding the details set forth in the police crime report and spoke also with John Pike, a used car dealer, to whom he had been referred. Pike stated that a man had been in his lot on business on the 21st of September and had told him that a friend of his had left several television sets in his garage. The man had a black eye and worked at Camp Pendleton. Green contacted the Criminal Investigation Section at Camp Pendleton, which located Fred Felan as the man in question. Officer Green talked with Felan and learned that Carlos Alvarez had left the television units in Felan's garage and had removed them in his Cadillac on Sunday, September 20th. Green also spoke to Mrs. Felan and Elidia Najera at their home, and they told him what they knew about the television sets.

The police officer then found the address of appellant at the Oceanside post office, and went to his home at about 2 p. m. on the 23rd of September, intending to talk with him concerning the burglary. Upon arrival he went to the front door of the residence where he entered into conversation with Mrs. Alvarez. He identified himself as a policeman and asked if her husband was at home. She answered that he was not there but was at his place of employment. Mrs. Alvarez asked Officer Green the reason he wished to see her husband, and he stated that it was with regard to the burglary of some television sets. She then said that her husband had given her one on the 21st of September. Green saw an operating television set from the doorway and asked if it was the one. When she said, 'Yes,' he noted that the machine fitted the description of one of the articles that had been stolen from Coleman's Service. With the consent and permission of Mrs. Alvarez, Green entered the home and while he was there he asked if he could take the set to headquarters for identification. Mrs. Alvarez gave an affirmative response, with the consequence that Green put the set in the patrol car. He then mentioned to Mrs. Alvarez that two television sets were still missing. She said that her husband had hidden the keys to their car, but she had found them and would check the car. She opened the trunk, and the missing Magnavox was there. Mr. Green asked Mrs. Alvarez' permission to take the Magnavox to police headquarters and Mrs. Alvarez agreed, without objection or argument. Officer Green took the two television units to the police department where they remained until they were used at the preliminary hearing and at the trial.

On September 23, 1964, Green talked with the appellant at the police station. He first informed him of his constitutional rights, that he did not have to make any statement, that he was entitled to the services of a lawyer, and that anything he said might be used against him. No threats were made or promises of reward. He asked the defendant whether there was anyone else who should be charged and the appellant said, 'I'll take this myself. I have in the past.'

On September 24th, appellant made a free and voluntary written statement in Green's presence. Although this writing had been lost at the time of the trial, the substance of the statement, as related by Green on the witness stand, was...