People v. Atwood

Decision Date16 December 1963
Docket NumberCr. 4321
Citation223 Cal.App.2d 316,35 Cal.Rptr. 831
CourtCalifornia Court of Appeals Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Gary Edward ATWOOD, Defendant and Appellant.

Robert N. Beechinor, San Francisco, for appellant (under appointment of the District Court of Appeal).

Stanley Mosk, Atty. Gen., Albert W. Harris, Jr., Keith E. Pugh, Jr., Deputy Attys. Gen., San Francisco, for respondent.

SULLIVAN, Justice.

Defendant Gary Edward Atwood was found guilty by a jury of burglary of the first degree. (Penal Code §§ 459, 460, subd. 1.) Upon defendant's arraignment for judgment, the court on its own motion modified the verdict to a finding of guilty of burglary of the second degree (Penal Code § 460, subd. 2) and sentenced defendant to the state prison. Defendant appeals from the judgment.

On January 16, 1962, at about 11 p. m. Wilbur Fradenburg, one of the owners of the Park Auto Reconstruction Company, a garage located on Stanyan Street in San Francisco (hereafter for convenience referred to as the 'garage'), having entered the garage and locked the gate behind him, went upstairs to bed in his flat over the garage. At about 2 a. m. he was awakened by the sound of the gate sliding open, but thinking that his employee was putting the latter's car in the garage, did nothing about investigating.

When Fradenburg came down to the garage at about 7:30 a. m. the next morning, he noticed that the lock on one of the gates had been broken and that the parts of the lock were on the ground. He found the office of the garage 'pretty much a shambles.' Missing from the office were two adding machines, a checkwriting machine, payroll and other checks, several automobile certificates of ownership, and certain tools. The safe had been pulled away from the corner of the office and was out about four feet into the room. A case of masking tape of substantial size which had been on top of the safe the night before, was on a chair alongside the safe. Fradenburg called the police.

San Francisco Police Inspector Walter Ihle, assigned to the police crime laboratory and a qualified fingerprint analyst, arrived at the garage at about 9 a. m. on January 17. He developed a latent palmprint on the right top edge of the safe approximately 14 inches from the front. Ihle testified that he believed the print was no more than three to five days old and that it was made by the left palm of the defendant. He also found other latent prints on the safe which were not defendant's and could not be otherwise identified.

San Francisco Police Inspector Edward McLaughlin, assigned to the burglary detail, testified that on May 9, 1962, 1 he had a conversation with defendant at the city prison. Defendant and the inspector were the only persons present. The inspector testified that after identifying himself by name and occupation, he told defendant that he was assigned to the case of the Park Auto Reconstruction Company at 624 Stanyan Street and asked him if he knew anything about it, and that defendant said 'No'; that he then asked defendant if he had ever been there and defendant said 'No'; that he then described the premises and location of the garage in more detail and asked defendant if such further information enabled him to recollect if he had ever been on the premises and that defendant said 'No.' McLaughlin further testified: 'And I then informed Mr. Atwood that from the office of these, of this location, a palmprint had been taken from the top of the safe, which subsequently was identified as belonging to him. And Mr. Atwood made no answer to that, and I terminated the interview and left him.'

Defendant took the stand on his own behalf. He testified on direct examination that he had first been in the garage about a week after his birthday, January 2, or in other words about January 9, to purchase an article to keep the fan belt of a friend's car from slipping; that he talked to a man in the office; that he saw the safe there; that he 'could have' touched the safe but that he didn't remember doing so; and that he remembered that he had dropped his ring 'over by the safe' and that he 'might have touched the safe' when he reached over to pick up the ring.

Defendant further testified on direct examination that about three or four days later (or in other words January 12 or 13) he went to the garage again with a friend, one Richard Shaw, to speak to the garage mechanic about some difficulty with the drive shaft on Shaw's car; that they were on the premises only 5 or 10 minutes; that they had stopped by the office to ask the person there where the mechanic was; that he did not recall that he at any time touched 'any of the articles' located in the office; and that he had never been on the garage premises on any other occasion. Defendant could not recall his whereabouts on the morning of January 17 but was positive he was not at the garage.

On direct examination, defendant gave his version of the conversation which he had with Inspector McLaughlin on May 9, 1962, as follows: that the inspector told him that he was going to be charged with burglary and that he, McLaughlin, had defendant's fingerprints, not a palmprint, 'found at this burglary'; and 'if I cared to make any statements to him. And that was about all of the conversation. I told him that I didn't know anything about any burglary.' According to defendant, McLaughlin mentioned the garage by name but not its address or location and defendant did not at any time tell the inspector that he had never been on the garage premises. On cross-examination, defendant denied that he had ever told the inspector that he had never been on the premises; denied that the inspector had informed him that his palmprints had been found on the safe; and denied that he had remained silent upon being informed of such fact.

Defendant was the only witness for the defense. His friend Shaw was never produced.

Defendant contends before us (1) that the information fails to state a public offense; (2) the evidence is insufficient to support the verdict; and (3) certain instructions to the jury were prejudicially erroneous.

The information in the instant case accuses defendant 'of the crime of felony, towit: VIOLATION OF SECTION 459 Penal Code committed as follows: The said defendant, on or about the 17 day of January 1962, at the City and County of San Francisco, State of California, did enter the premises of PARK AUTO RECONSTRUCTION CO., located at 624 Stanyan Street, with intent to commit theft.'

Defendant claims that by the use of the word 'premises' the information is fatally defective since it thereby fails to charge an entry of any of the structures enumerated in Penal Code section 459. 'Premises' is not found therein. It is asserted that the word 'premises' encompasses far more than the structures listed in the section and in its usual acceptance includes unimproved land, entry upon which would not constitute burglary. As a result, says defendant, the information charges no offense at all and is void.

The purpose of an indictment or information is to inform the accused of the charge which he must meet at the trial. (People v. Yant (1938) 26 Cal.App.2d 725, 730, 80 P.2d 506; People v. Brac (1946) 73 Cal.App.2d 629, 634-635, 167 P.2d 535.) As the court stated in People v. Randazzo (1957) 48 Cal.2d 484, 489, 310 P.2d 413, 417: 'An information is sufficient if it charges the defendant with the commission of a public offense in words sufficient to give him notice of the offense of which he is accused. People v. Roberts, 40 Cal.2d 483, 486-487, 254 P.2d 501; Pen.Code, § 952. Only the essential elements of the offense need be charged. People v. Britton, 6 Cal.2d 1, 5, 56 P.2d 494. Notice of the particular manner, means, place or circumstances of the offense is given, not by detailed pleading, but by the transcript of the evidence before the committing magistrate. People v. Pierce, 14 Cal.2d 639, 646, 96 P.2d 784.'

The word 'premises' has various meanings and must be considered in relation to that which it precedes, or to which it refers (Ballsun v. Star Petroleum Co. (1930) 105 Cal.App. 679, 687, 288 P. 437). As was noted in Ballsun the term has come to mean not only land, land and appurtenances, and land together with the buildings thereon, but also buildings as distinct from the land on which they are located and even parts of buildings. In County of San Mateo v. Consolidated Farms (1959) 169 Cal.App.2d 735, 738, 337 P.2d 840, this court observed that the legal concept of the word premises is a very fluid one depending upon the situation and the purpose of its use. Webster's Third New International Dictionary (1963) defines 'premises' as: 'premises pl. a archaic: property that is conveyed by bequest or deed b: a specified piece or tract of land with the structures on it c: a building, buildings, or part of a building covered by or within the stated terms of a policy (as of fire insurance) d: the place of business of an enterprise or institution' It is apparent therefore that the term can mean buildings alone as well as unimproved land.

The information herein notified defendant that he was being charged with the violation of a statute covering burglary. It further told defendant that he stood accused of entering the 'premises' of the Park Auto Reconstruction Co. with intent to commit theft. Defendant knew from previous visits that such 'premises' consisted of a garage located in a building. The information then in fact told him that he was accused of entering a building to commit theft. We think that the language therein used was sufficient to give him notice of the offense of which he was accused and complied with the provisions of Penal Code sections 951 and 952. If the use of the word 'premises' was productive of any uncertainty and ambiguity in the information, it was incumbent upon defendant...

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