People v. Burciago, Cr. 8757

• Decision Date: 08 May 1978
• Docket Number: Cr. 8757
• Citation: 81 Cal.App.3d 151,146 Cal.Rptr. 236
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Camacho BURCIAGO and Thomas Burciago, Defendants and Appellants.

Page 236

146 Cal.Rptr. 236

81 Cal.App.3d 151

The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Camacho BURCIAGO and Thomas Burciago, Defendants and Appellants.

Cr. 8757.

Court of Appeal, Third District, California.

May 8, 1978.

Hearing Denied July 13, 1978.

Evelle J. Younger, Atty. Gen. by John W. Hedden, Jr., Sacramento, for plaintiff and respondent.

Paul Halvonik, State Public Def. by Marilyn Fisher, Deputy Public Defender, Sacramento, for defendants and appellants.

REYNOSO, Associate Justice.

Defendants were jointly charged with four counts of robbery (counts I, III, IV and V), each count further alleging the use of a handgun. In addition, defendants were individually charged, Thomas with four counts of receiving stolen property (counts II, VI, VII and IX) and Joseph with one count of robbery (count VIII.) A jury trial was held. Defendant Joseph was found guilty of two of the jointly charged robberies (counts I and III), to have used a firearm in the commission of those offenses, and not guilty of the two others so charged. As to the robbery with which he alone was charged (count VIII), the jury was unable to reach a verdict and a mistrial was declared. Thomas was found guilty, in respect to the robbery charges, only as to that charged in count IV of the information, a count upon which his codefendant had been acquitted. Thomas' use of a weapon during Defendant Thomas Burciago raises two contentions. First, the improper admission of hearsay testimony regarding statements incriminating him made to the police by the witness George Purdy violated his right of confrontation, as guaranteed by the federal Constitution; second, his right of confrontation was denied through the prosecutor's improper use of leading questions.

the commission of that offense charged was also found. The jury also found Thomas guilty of two counts of receiving stolen property (counts II and VI). Both defendants were sentenced to state prison for their offenses. Both appeal.

Defendant Joseph Burciago contends on appeal that: (1) the verdicts regarding the Simmons' robbery (charged in count I) and the Ott robbery (charged in count III) are not supported by substantial evidence; (2) the court abused its discretion in denying Joseph's motion that the jury be allowed a view of the peephole device in the door of the witness Edna Hayes, who testified in respect to the Simmons' robbery; and (3) the court erred in denying Joseph's motion that the identification testimony of victim Leo Simmons be stricken.

Review of the record compels the conclusion that neither the contentions asserted by Thomas Burciago nor those advanced by Joseph Burciago are meritorious. The judgments against each may properly be affirmed.

FACTS

Robbery of the Simmons' Home

Count I, a count upon which only Joseph was found guilty, involved a robbery in the Tracy home of Leo and Laura Simmons. The facts surrounding this offense are as follows:

Edna Hayes, whose home was two doors away from that of Leo and Laura Simmons, testified that shortly before 11:00 p. m. on September 23, 1975, there was a knock at her door. She asked who was there. A male voice replied, telling her that he wanted some water. She looked through the peephole in her door and observed a man whom she identified at trial as Joseph. Her testimony included a description of the man, his physical characteristics, and his clothing. She told him that there was a hose out front but he asked for a bucket, stating that something was wrong with his car. She told him to go away, which he did.

A few minutes later, at approximately 11:00 p. m. the Simmons' doorbell rang. Mrs. Simmons looked out a front window and observed a man clothed in the manner as that previously described by Mrs. Hayes. She remarked to her husband how unusual it was for a man to be outside wearing a coat on such a warm evening. Her husband opened the door and was told by the man that he needed water for his car, to which Mr. Simmons replied there was a hose and faucet out front. The man said he needed a bucket and Mrs. Simmons brought one. As Mr. Simmons unlocked his outside door, the man placed a gun to Simmons' head and forced entry into the home, saying it was a robbery. Mr. Simmons' description of the man's clothing matched that given by his wife and by Mrs. Hayes. A second and larger man entered the house with the first one and they tied up Mr. and Mrs. Simmons and took several items from the home, including a television set, linens, blankets, two belts and a Masonic ring. Mr. and Mrs. Simmons were tied with strips of torn bedsheets, gagged, and a sheet was thrown over their heads.

Mr. and Mrs. Simmons were unable at trial positively to identify either defendant but Mr. Simmons did testify that Joseph resembled the man who had first had contact with them. Mr. Simmons had also picked Joseph out of a lineup as resembling that first man. Both Mr. and Mrs. Simmons testified that the second man had a stocking over his face, and that he held a knife to Mr. Simmons' throat. Mr. Simmons testified that at one time, while lying bound and gagged he saw three sets of feet rather than just two, and heard one man speak in Spanish to someone outside. After the men left, Mrs. Simmons was able to untie herself and called the police.

The value of the items taken was approximately $3,000.

Robbery of the Ott Home

Count III, of which Joseph alone was convicted, involved a robbery of the Stockton home of Mrs. Patricia Ott. The facts relating to this offense are as follows:

Mrs. Ott was in her living room at approximately 8:25 p. m. on September 30, 1975, when her dog started to bark. Mrs. Ott went out to her service porch and saw a man she later identified as Joseph crouched behind a door pointing a gun at her. He threatened to kill her if she made a noise, then marched her into a bedroom in the home, where, at his command, she lay on the bed with a blanket over her face. He asked her for her valuables and was directed to her money. He ordered her into a closet and jammed a chair up against the door. He came back, told her he couldn't find the money, and took her out of the closet so she could show him where it was. After taking the money he walked her back towards the closet asking her if she had any guns or jewelry, and took her watch when she replied she had nothing else. He again placed her in the closet. She heard footsteps going out and then the closet door opened and two men looked in at her and again closed the door. She heard the second person, whom she identified at trial as Thomas, tell Joseph, " 'Kill her, chicken, go ahead.' " She heard the two walking around and finally they came back, took her out of the closet and told her again to get on the bed, which she did. Joseph asked her if she had anything else of value and she told him of a little more money. She was then tied and gagged by the man she identified as Thomas, who picked up the edge of the mattress and flipped her over so that she was lying between the wall and the bed, and covered her face with the bedspread. This man then leaned over her, told her he had a silencer on his gun and that he could kill her and no one would know the difference. Mrs. Ott, however, did not see any gun in his hand or on his person. She heard some more movement around the house and then Joseph took the blanket off her face telling her he was giving her some air. She heard further movement in the house and then departure. She managed to free herself and call the police. In addition to her watch and money, a wallet and some cuff links were also taken, a total value of approximately $300. Prior to trial Mrs. Ott had identified Joseph from photographs shown her by the police and had selected a photograph of a Felix Burciago as resembling the second robber.

Robbery of the Deloney Home

Count IV, upon which only Thomas was convicted, involved a robbery in the Manteca home of Barbara and Vernon Deloney.

The Deloneys were watching television in their home at approximately 8:00 p. m. on October 1, 1975, when Mrs. Deloney heard a noise. She turned towards the sound and saw two men coming from her kitchen, both pointing guns at her. Both men were masked with nylon stockings, in each of which the eyes and the mouth had been cut out, thus eliminating the natural tautness of the nylon. She identified the first of the men at trial as Thomas but was never able positively to identify the second man as Joseph. The Deloneys were ordered to quiet their dog, lock their front door, which had been open since Mrs. Deloney was planning to leave to go pick up her daughters, and to turn the lights off in the living room. The men asked the Deloneys for their money, took it and Mrs. Deloney's wallet containing her credit cards and ordered her to lie down on the floor. Thomas, identified by Mr. Deloney at trial, cocked his gun and placed it threateningly in Mr. Deloney's mouth. Thomas got a sheet which he tore into strips and used to tie up Mrs. Deloney. He then picked her up and carried her into the bathroom where he deposited her in the tub. The other man remained in the living room with Mr. Deloney, threatened him with a knife, jabbing him and drawing blood with it. Thomas returned and asked Deloney if he had any guns, threatening to kill him for lying. Thomas struck Deloney in the head with his gun and then tied him and put him in the bathroom with his wife. After the Deloneys heard the men leave, they freed themselves and called the police.

The Deloneys were shown photographs but were unable to identify either defendant. Mrs. Deloney ultimately selected Thomas' picture from photos of a police lineup, but her husband, until trial, was not able to identify either man.

Property Taken From Residences of Simmons and Mello

Counts II and VII, which were charged against Thomas Burciago alone and of which he was convicted, involved property taken from the Simmons and from the Stockton...