People v. Bartlett

• Decision Date: 08 December 1967
• Docket Number: Cr. 2766
• Citation: 256 Cal.App.2d 787,64 Cal.Rptr. 503
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Jack Henry BARTLETT and Bill Lee Lawson, Defendants and Appellants.

Page 503

64 Cal.Rptr. 503

256 Cal.App.2d 787

The PEOPLE of the State of California, Plaintiff and Respondent, v. Jack Henry BARTLETT and Bill Lee Lawson, Defendants and Appellants.

Cr. 2766.

Court of Appeal, Fourth District, Division 2, California.

Dec. 8, 1967.

[256 Cal.App.2d 788] Donald W. Jordan, Jr., San Bernardino, by appointment of this Court of Appeal, for defendant and appellant Jack Henry Bartlett.

Edison P. McDaniels, San Bernardino, by appointment of this Court of Appeal, for defendant and appellant Bill Lee Lawson.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Richard H. Cooper, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

TAMURA, Associate Judge.

Following a jury trial defendants were found guilty of second degree burglary, denied probation and sentenced to state prison. They appeal from the judgments of conviction.

Defendants contend that the judgments should be reversed because (1) the offense for which they were convicted was not included in the commitment order holding them to answer; (2) evidence of other offenses was erroneously received; (3) prejudicial evidence tending to show that defendants were narcotics addicts was improperly received.

Following a preliminary examination defendants were held to answer on a criminal complaint charging two counts of burglary, one occurring on November 2, 1965, involving a service station owned by Frank, Valenti and the other occurring on June 23, 1965, involving a garage owned by Frank Paz. The information filed by the district attorney charged defendants not only with the two counts on which they had been committed but an added count of burglary allegedly committed on November 2, 1965, involving the garage owned by Frank Paz.

On a motion under section 995 of the Penal Code, the two counts on which defendants were originally held to answer were dismissed for lack of evidence of probable cause. Defendants thereafter sought a writ of prohibition from this court to restrain the trial court from proceeding further on the remaining count on the ground that there was neither evidence of corpus delicti nor probable cause. The writ was denied (4th Civil 8385, August 23, 1966) and defendants were tried and convicted on the remaining count.

The evidence may be summarized as follows: On November 2, 1965, between 1:00 and 2:00 p.m. defendants and a third person riding in an old car drove inside a garage owned by Frank Paz. The three got out of the vehicle and defendant Bartlett asked Mr. Paz to check a noise in the drive shaft. The telephone rang so Mr. Paz went to the doorway of his office to answer it. Defendant Bartlett stood in front of Mr. Paz while the latter answered the phone and the other two remained in an area between the vehicle and a cabinet in which spark plugs were stored. When Paz hung up the phone and turned around the three walked to the vehicle, got in and drove out of the rear exit. Immediately following their departure, Paz noted that approximately 5 boxes of spark plugs (each box containing 6 plugs) were missing from the cabinet. The supplier had filled the cabinet the previous day. About two hours before defendants entered the garage, Mr. Paz had performed a tune-up on a car and had removed a box of plugs from the cabinet. He noted that it was full except for the box he removed. In the interim no one other than Paz was near the cabinet and only he and his partner had been in the garage. Mr. Paz had seen defendants at the garage on two prior occasions, once in June and once in July or August of 1965.

Over defendants' objections evidence of two other incidents was received--one occurring on October 24, 1965, involving a service station in Covina and the other on November 2, 1965, involving a station in Glendale. The evidence showed that in both instances after a visitation by defendants the spark plug supply maintained by the stations was missing. When defendants were arrested on November 6 in Glendale, the arresting officer found a carton in defendant's vehicle containing boxes of spark plugs which boxes were identified as being from the Glendale service station.

An officer of the Glendale Police Department was permitted to testify, over defendants' objections, that at the time of their arrest on November 6, defendants were under the influence of narcotics. He based his opinion on the condition of their eyes, their speech, and the fact that both had puncture marks on the inside of their elbows. From observing defendants' behavior during later interviews, the officer expressed the opinion that the two were undergoing heavy withdrawal symptoms. He was permitted to testify that in his opinion defendants had been heavy narcotics users for at least two months, that they would have required a gram of heroin a day to maintain their habit, and that a gram of heroin would cost from $25 to $50.

Defendants did not take the stand or offer any evidence in defense.

Defendants contend that the court lacked jurisdiction to try them for the offense for which they were convicted because it was not designated in the commitment order.

Section 739 of the Penal Code authorizes the district attorney to file an information charging a defendant with the offense or offenses designated in the commitment order 'or any offense or offenses shown by the evidence taken before the magistrate to have been committed. * * *' Although literally the section would appear to permit it, it has been held that it does not authorize the inclusion of Any offense disclosed by the evidence adduced at the preliminary examination. (See People v. Downer, 57 Cal.2d 800, 22 Cal.Rptr. 347, 372 P.2d 107; People v. Saldana, 233 Cal.App.2d 24, 43 Cal.Rptr. 312; Mulkey v. Superior Court, 220 Cal.App.2d 817, 34 Cal.Rptr. 121.) Section 739 must be read in the light of article I, section 8, of the Constitution, which provides that offenses which were theretofore required to be prosecuted by indictment shall be prosecuted by an indictment or by an information 'after examination and commitment by a magistrate.' (Parks v. Superior Court, 38 Cal.2d 609, 241 P.2d 521.) In that context, section 739 has been construed as authorizing the inclusion of an offense not designated in the commitment order but shown by the preliminary examination to have been committed by defendant if such added offense is related to or connected with the crime or crimes designated in the commitment order. (People v. Downer, supra, 57 Cal.2d 800, 22 Cal.Rptr. 347, 372 P.2d 107.) There must be some 'transactional relationship' between the added charge and the crime or crimes for which the defendant has been held to answer. (Mulkey v. Superior Court, supra.)

In People v. Downer, supra, 57 Cal.2d 800, 22 Cal.Rptr. 347, 372 P.2d 107, defendant was held to answer for rape and incest committed against his daughter on a given date. The district attorney filed an information including an additional count charging attempted incest alleged to have been committed some ten days later. The court held that the inclusion of the added offense was proper because the preliminary examination revealed that defendant had been engaging in a course of illicit conduct with his daughter over a long period of time and that, hence, the added offense was 'related' to and arose out of the same transaction which formed the basis for the commitment order. In distinguishing Parks v. Superior Court, supra, 38 Cal.2d 609, 241 P.2d 521, which disapproved language in People v. Wyatt, 121 Cal.App. 180, 8 P.2d 901, indicating that a relationship evidenced by common scheme or design was sufficient, the court emphasized the existence of a 'continued series of illicit relations between the same parties, defendant and the prosecutrix.' Justice Peters with Justice Dooling concurring, dissented on the ground that the majority had in effect overruled Parks v. Superior Court, supra, 38 Cal.2d 609, 241 P.2d 521.

In the present case the relationship between the added offense and the crimes designated in the commitment is merely one of common scheme or design, a relationship which in and of itself would be insufficient. (Parks v. Superior Court, supra, 38 Cal.2d 609, 613, 241 P.2d 521; Mulkey v. Superior Court, supra, 220 Cal.App.2d 817, 824, 34 Cal.Rptr. 121.) Although the victim in the added offense is the same as the victim in one of the offenses on which defendants were held to answer, the evidence does not disclose a continuity of a course of criminal conduct between defendants and the victim, a factor which was deemed controlling in People v. Downer, supra, 57 Cal.2d 800, 22 Cal.Rptr. 347, 372 P.2d 107. We conclude that the count on which defendants were convicted was improperly added.

Defendants, however, by going to the trial without raising the point have waived it.

Section 996 of the Penal Code provides that if a motion to set aside the information is not made, defendant is thereafter precluded from raising objections which he could have raised by a 995 motion, namely, (1) that he had not been legally committed by a magistrate, or (2) that he had been committed without probable cause. ¹ A defendant who fails to move under section 995 to dismiss an information charging an offense other than the one designated in the commitment order has been held to have waived such objection. (People v. Ortiz, 208 Cal.App.2d 313, 316, 25 Cal.Rptr. 431; People McCoy, 181 Cal.App.2d 284, 288, 5 Cal.Rptr. 107; People v. Rankin, 169 Cal.App.2d 150, 164, 337 P.2d 182; People v. Workman, 121 Cal.App.2d 533, 535, 263 P.2d 458; People v. Ahern, 113 Cal.App.2d 746, 750, 249 P.2d 63.) In the instant case although defendants moved under section 995 to dismiss the information and thereafter unsuccessfully sought a writ of prohibition, neither in their motion under 995 nor in their application for a writ of prohibition did they raise the contention that they had not been properly committed on the added count. The failure to raise that...