People v. Brown

• Decision Date: 23 October 1969
• Docket Number: Cr. 3734
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Lonnie C. BROWN, Defendant and Appellant.

Page 401

81 Cal.Rptr. 401

1 Cal.App.3d 161

The PEOPLE of the State of California, Plaintiff and Respondent, v. Lonnie C. BROWN, Defendant and Appellant.

Cr. 3734.

Court of Appeal, Fourth District, Division 1, California.

Oct. 23, 1969.

Hearing Denied Dec. 17, 1969.

[1 Cal.App.3d 162] A. Kandall Wood, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Jerold A. Krieger, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

WHELAN, Associate Justice.

Lonnie C. Brown (defendant), convicted in a non-jury trial of the unlawful taking and driving of a vehicle (Veh.Code, § 10851), appeals from an order granting probation for three years.

On the evening of December 13, 1968, a 1959 Chevrolet Impala automobile with license plate KLS--333 was taken without permission of the owner from a used car parking lot in National City. The ignition key had been left in the car.

At approximately 2:10 a.m., on December 17, 1968, two San Diego city policemen, Ronald C. Shankles and Winston Parker, were in the same patrol car going around the traffic circle on Imperial Avenue. They saw a 1959 Chevrolet Impala bearing license plate KLS--333 which had come to a complete stop. The car then commenced to move and almost hit the guard railing on the inside of the traffic circle. Shankles had the impression the driver was drunk. The officers stopped the car. Defendant was the driver and when he alighted from the auto was advised of the constitutional rights concerning which advice is required to be given before questioning. The officers administered a field coordination test, found defendant to have been drinking but that his ability to drive was not impaired thereby. Officer Shankles asked defendant if he could look inside the vehicle and defendant consented. Shankles looked for the registration certificate. Defendant, in response to a question as to its location in the car, stated he did not know. The officer ran a records check with the police business office which revealed the car to be one stolen from the lot in National City. The policemen told defendant the car had been stolen and again advised him of his rights and then placed him under arrest.

Shankles asked defendant if the car belonged to him; defendant stated the car belonged to his cousin's boyfriend; he could not remember the name of the boyfriend. Officer Shankles asked defendant where he was going; defendant stated he was going to a liquor store to buy a six-pack of beer; that he was coming from a party; that he had been at a party in the area of 32nd and Webster; he could not recall the exact address; that if the officers took him back he could find the house.

Thirty-second and Webster was a little over a half-mile from the place of the arrest.

Officer Parker also talked to defendant after the latter had received the Miranda advice.

Defendant did not tell Parker when he had received the car; he told Parker he had started from 32nd and Webster, that he had been at a party, and that he was returning to the Webster address; that he was returning there from a party.

Defendant was brought to the city jail. At 1:05 on the afternoon of the same day he was interviewed, after having been advised anew of his Miranda rights by Sergeant William Nosal.

Defendant told Nosal that he was en route from his cousin's residence in the vicinity of 32nd and Webster and he was subsequently en route to another cousin's house, the exact address of which he was unable to relate; that the vehicle had been lent him by a boyfriend of his cousin who resided in the vicinity of 32nd and Webster; he did not know the name of the boyfriend.

Nosal gave his card to defendant while transporting defendant from the City of San Diego Jail to the county jail, and told him to contact Nosal at any time concerning any further information defendant might have concerning the person who had lent the car to defendant. Thereafter, Nosal had not heard from defendant.

At that point the prosecution rested and counsel for defendant moved for an acquittal under Penal Code, section 1118. ¹ The motion was based on the ground that the prosecution had shown only that defendant was in possession of stolen property and relied on the leading case of People v. McFarland, 58 Cal.2d 748, 26 Cal.Rptr. 473, 376 P.2d 449. The motion was denied. Defendant then presented his evidence.

Because of the limited nature of the issue presented by defendant it is not necessary to summarize his own testimony or that of his other witness. Suffice to say that it did not add strength to the explanations given by defendant to the police as testified to by them.

As stated in his opening brief and iterated in his reply brief, defendant's only contention is that the trial court erred in denying defendant's motion for acquittal; that there was no evidence indicating an intent by defendant to deprive the true owner either permanently or temporarily of title to or possession of the vehicle.

Vehicle Code, section 10851, provides:

'Any person who drives or takes a vehicle not his own, without the consent of the owner thereof, and with intent either permanently or temporarily to deprive the owner thereof of his title to or possession of the vehicle, whether with or without intent to steal the same, or any person who is a party or accessory to or an accomplice in the driving or unauthorized taking or stealing is guilty of a Public offense, * * *.'

A violation of this section requires proof of a specific intent to deprive the owner of the car of possession or title for either a temporary or permanent period. (People v. Johnson, 191 Cal.App.2d 694, 699, 13 Cal.Rptr. 1.)

Possession of stolen property in no way shifts the burden of proof or destroys the presumption of innocence. (People v. McFarland, supra, 58 Cal.2d 748, 756.) After stating the different rules enunciated by California Courts of Appeal with respect to inferences arising from possession of stolen property, the court, in McFarland, held:

'The rule may be stated as follows: Where recently stolen property is found in the conscious possession of a defendant who, upon being questioned by the police, gives a false explanation regarding his possession or remains silent under circumstances indicating a consciousness of guilt, an inference of guilt is permissible and it is for the jury to determine whether or not the inference should be drawn in the light of all the evidence.' (58 Cal.2d p. 755, 26 Cal.Rptr. p. 476, 376 P.2d p. 452)

Furthermore.

'If (defendant) * * * makes a statement by way of explanation which on its face raises a reasonable doubt as to guilt (for example, that he was not aware that the property was...