People v. Curcio, Cr. 2496

CourtCalifornia Court of Appeals
Writing for the CourtFINLEY; GERALD BROWN, P. J., and COUGHLIN
Citation56 Cal.Rptr. 591
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Victor CURCIO, Defendant and Appellant.
Decision Date03 February 1967
Docket NumberCr. 2496

Page 591

56 Cal.Rptr. 591
The PEOPLE of the State of California, Plaintiff and Respondent,
Victor CURCIO, Defendant and Appellant.
Cr. 2496.
Court of Appeal, Fourth District, Division 1, California.
Feb. 3, 1967.
Hearing Granted and Cause Retransferred to Court of Appeal March 29, 1967.

Page 594

Victor Albert Curcio, in pro. per., and William G. Bailey, 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 S. Clark Moore, Deputy Atty. Gen., for plaintiff and respondent.


FINLEY, Associate Justice pro tem. *

This is an appeal from the judgment entered upon a jury verdict of first degree burglary (Pen.Code, § 459). Defendant admitted four prior felony convictions.

On November 10, 1965, Victor Albert Curcio, appellant, entered the R.C.A. Distributing Company's San Diego warehouse carrying a cardboard carton and walked up-stairs to the second floor display area. After about three minutes he came back downstairs still carrying the carton and left the building. The warehouse manager, Jack Wiseman, followed appellant out of the building and stopped him. Appellant handed the carton to Wiseman, saying: 'Take your damn radios'. The carton contained four radios, the serial numbers and identification marks of which matched those Wiseman discovered missing upon his return to the warehouse.

After handing the carton to Wiseman, appellant hurriedly walked away. Wiseman followed. When Wiseman reached a point within 3 or 4 feet of appellant, appellant stopped, turned toward Wiseman, reached into his right coat pocket and said: 'Get away from me, (vulgarity). I am going to cut you.' Wiseman backed off, but still pursued appellant who turned into a parking lot. At this point a police officer arrived, searched appellant and found, among other things, small pieces of paper on which appellant had written the addresses of four radio and television wholesale distributorships. Also in his right pocket were a beer can type of can opener for making 'V' shape openings in the top of a can, and a long handled can opener characterized by Wiseman as the type that you would insert into the can and work around it: on each, the part to be inserted in the can was sharp and pointed. 1 The officer testified that he advised defendant, 'he did not have to make any statements concerning the case, anything he said could be held against him, and he was entitled to an attorney.--I informed him that he was under arrest.'

Allowed into evidence was testimony that on January 28, 1964, appellant entered the Admiral Warehouse in San Diego and after 4 or 5 minutes spent in the display area went out the door and left the building carrying a carton with him. Mr. O'Neal, an employee, checked the display area and discovered 5 or 6 radios were missing. He and the manager then drove around the area in an automobile, but were unsuccessful in finding appellant. Another witness, a Mr. Chrest testified that appellant met him on a downtown street; appellant was carrying a carton; he asked Chrest to help him carry the carton and said upon inquiry that the radios were 'slightly warm'. They went into a card room and then across the street for coffee. In the carton Chrest saw 5 new radios with the price tags on them. About this time O'Neal and a Mr. Reed, while driving on Fourth Street in San Diego, saw appellant holding the carton and talking to another man. Reed got out while O'Neal went to park the car. Reed

Page 595

observed appellant going into the card room, come out with another man, walk across the street and into the coffee shop. Reed and O'Neal observed appellant return to the card room, come out carrying a carton and turn the corner of the block.

The record shows that throughout the trial appellant was represented by two attorneys. The jury returned a verdict of guilty of burglary in the first degree. Coupled with the four prior felony convictions judgment was entered thereon.

The notice of appeal was filed by appellant in Propria Persona. Thereafter, the attorney who represented appellant as his chief counsel during the trial was appointed by this court as his counsel on appeal. Appellant moved, without success, to relieve court-appointed counsel, but was allowed by this court to file opening and closing briefs in Propria Persona. In his opening brief appellant states the issues as follows:

'1) Was appellant denied due process and a fair and impartial trial by the admission into evidence--testimony of three witnesses relating to a theft occurring in 1964, for which the appellant had not been charged and/or convicted of.

'2) Did appellant receive 'effective' assistance of counsel as guaranteed under the Sixth Amendment to the United States Constitution, when the record establishes that:

'a) counsel failed to object to leading question;

'b) counsel's failure to cross-examine witnesses on relevant points brought out during direct examination;

'c) counsel's failure to object to and/or motion for a new trial at the time the trial court erred in its admonition to the jury;

'd) counsel's failure to submit jury instructions on lesser offenses;

'e) counsel's failure to impeach a prosecution witness when he had personal knowledge of this witnesses [sic] fabricated and perjured testimony;

'f) counsel's failure to object to the admission in evidence of the exhibits after the prosecution failed to lay the requisite foundation.

'3) Was the appellant denied due process and a fair trial by the trial court's error in giving the jury instructions.

'4) Was the appellant denied a fair trial and protections under the Fifth Amendment by the Admission in evidence the results of a police line-up which was conducted after appellant was in police custody and where the investigation had ceased to be a general inquiry into an unsolved crime and had focused on the appellant.

'5) Was the evidence taken from the property envelope the 'fruits' of an illegal search and seizure.

'6) Does the evidence sustain a conviction of first degree burglary'.

POINT 1: The rule respecting evidence of other crimes is set forth in People v. Lopez, 60 Cal.2d 223, 249-250, 32 Cal.Rptr. 424, 439, 384 P.2d 16, 31:

"It is settled in this state * * * that except when it shows merely criminal disposition [citations], evidence that is relevant is not excluded because it reveals the commission of an offense other than that charged. 'The general tests of the admissibility of evidence a criminal case are: * * * does it tend logically, naturally, and by reasonable inference, to establish any fact material for the people, or to overcome any material matter sought to be proved by the defense? If it does, then it is admissible, whether it embraces the commission of another crime or does not, whether the other crime be similar in kind or not, whether it be a part of a single design or not." (People v. Peete (1946) 28 Cal.2d 306, 314-315, 169 P.2d 924.)'

Appellant contends the inference of criminal disposition arising from evidence of the Admiral burglary 'was prejudicial to the instant case, and any statute authorizing same is unconstitutional.' The

Page 596

question of propriety in admitting such evidence has been considered in a number of cases. The practice has not been held to be unconstitutional. In People v. Henderson, 60 Cal.2d 482, 495, 35 Cal.Rptr. 77, 84, 386 P.2d 677, 684, the court made this assertion:

'Although evidence of prior offenses carries with it the risk that its probative value may be outweighed by its possible prejudicial effect, evaluation of this risk rests in the sound discretion of the trial court. (People v. McCaughan, 49 Cal.2d 409, 421-422, 317 P.2d 974.)'

In the present case counsel for appellant and the trial judge discussed this point at some length out of the presence of the jury. Counsel's objection to admissibility of the evidence was overruled. We cannot say the trial court abused its discretion. It has long been settled in this state that evidence of other criminal acts may be introduced into evidence if it shows a common scheme or plan. (People v. Roy, 203 Cal.App.2d 613, 621-622, 21 Cal.Rptr. 620. Evidence of similar acts by a defendant is admissible to show either guilty knowledge, intent, motive, or design (People v. Adamson, 225 Cal.App.2d 74, 76, 36 Cal.Rptr. 894). In People v. Wade, 53 Cal.2d 322, 330, 1 Cal.Rptr. 683, 689, 348 P.2d 116, 122, we find the following language:

'It is the general rule that evidence of a collateral crime is inadmissible in a criminal prosecution for the asserted reason that its tendency to inflame and prejudice the jury outweighs its evidentiary value. [Citation.] An exception to this rule is found, however, where the evidence of the prior or collateral criminal act is relevant to prove a specific and ascertainable feature of the crime on which the prosecution is founded, such as lack of mistake, motive or intent. The connection of the accused with the collateral offense put into evidence must, however, be clear and convincing. [Citation.]'

In the instant case the slips of paper with radio warehouse addresses and evidence relating to the Admiral episode were admitted for the legitimate purpose of indicating a common scheme or design of criminal operation. In addition to a proper exercise of discretion under the circumstances in admitting this evidence the court instructed the jury orally at the time the evidence was admitted that evidence of the Admiral incident was admitted:

'* * * solely for a limited purpose only, not to prove distinct offenses or continual criminality, but for such bearing, if any, as it might have on the question of whether the defendant is innocent or guilty of the crime charged against him in this case.'

At the time of final instruction the court gave a full, specific and accurate instruction on this point. We find that under the circumstances appellant's objection to evidence concerning the...

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1 practice notes
  • State v. Hutton, No. 5537
    • United States
    • Supreme Court of New Hampshire
    • October 31, 1967
    ...364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777; Cotton v. United States, 371 F.2d 385, 388, 392 (9th Cir., 1967); People v. Curcio, Cal.App., 56 Cal.Rptr. 591, 600; State v. Darabcsek, 412 S.W.2d 97, 102 (Mo.1967). It follows that the coins so obtained by the police, if fruits or evidence of the cr......
1 cases
  • State v. Hutton, No. 5537
    • United States
    • Supreme Court of New Hampshire
    • October 31, 1967
    ...364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777; Cotton v. United States, 371 F.2d 385, 388, 392 (9th Cir., 1967); People v. Curcio, Cal.App., 56 Cal.Rptr. 591, 600; State v. Darabcsek, 412 S.W.2d 97, 102 (Mo.1967). It follows that the coins so obtained by the police, if fruits or evidence of the cr......

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