People v. Darling

• Decision Date: 22 May 1989
• Docket Number: No. A040817,A040817
• Citation: 258 Cal.Rptr. 588,210 Cal.App.3d 910
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Jerry Lee DARLING, Defendant and Appellant.

Page 588

258 Cal.Rptr. 588

210 Cal.App.3d 910

PEOPLE of the State of California, Plaintiff and Respondent, v. Jerry Lee DARLING, Defendant and Appellant.

No. A040817.

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

May 22, 1989.

Donald S. Altschul, San Francisco, for defendant and appellant Jerry Lee Darling.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Catherine A. Rivlin, Deputy Atty. Gen., Blair W. Hoffman, Deputy Atty. Gen., San Francisco, for plaintiff and respondent People of the State of California.

HOLMDAHL, Associate Justice.

A jury found appellant Jerry Lee Darling guilty of burglary. (Pen.Code, § 459.) ¹ On appeal he argues it was error to admit evidence he was carrying a screwdriver when apprehended. For the following reasons, we affirm.

Factual and Procedural Background

On August 21, 1987, at approximately 5:30 p.m., Roger Menefee arrived home, entered his house, and left the garage door open. At 7 p.m., Menefee's friend, Michael Doane, drove up and saw appellant stepping out of Menefee's garage carrying a briefcase. Doane asked appellant what he was doing and appellant responded that he wasn't stealing anything.

Menefee came out of the house and identified his briefcase, which he had left sitting on a desk in the garage. Appellant complied with a request to empty his pockets, and produced a calculator and adapter cord, taken from a drawer in Menefee's desk. A screwdriver fell from appellant's pocket.

Neither Doane nor Menefee noted a smell of alcohol on appellant's breath, nor did they notice bloodshot eyes or difficulty walking or speaking. Officer Butler responded to Menefee's call to the police. She noted that appellant appeared to be a street person, with a light odor of alcohol on his breath. She did not think he was intoxicated, and stated that he was able to care for himself and find his way home.

Appellant testified that he found the screwdriver in a trash dumpster that morning in the downtown area of San Francisco. He recalled being near 7th and Market Streets in the afternoon, but had no recollection of the events at Menefee's home, due to alcohol and heroin intoxication. Appellant did not know where Menefee's neighborhood was, and could not recall how he got there.

On September 21, 1987, appellant was charged with burglary, and three prior convictions. ( § 667.5, subd. (b).) He pleaded not guilty. On October 27, 1987, the court denied an in limine motion to exclude evidence that appellant was carrying a screwdriver. On October 29, 1987, the jury found him guilty of burglary. The trial court subsequently found the allegations regarding appellant's prior convictions to be true and sentenced appellant to a total of five years in prison.

Discussion

The sole issue raised on appeal is that the court erred in denying appellant's motion to exclude evidence regarding the screwdriver. Appellant contends that the evidence was irrelevant because the burglary was not accomplished by means of a screwdriver. Lacking this connection, he claims that the evidence is nothing more than improper character evidence that appellant was the type of person who carried burglar tools.

Appellant cites a number of cases in support of this contention, but the vast majority of the cases involve the attempted introduction of a burglary tool to prove that the defendant was the burglar. Thus, in People v. Winters (1866) 29 Cal. 658, the court stated: "Burglarious tools found in the possession of the defendant soon after the commission of the offense may be offered in evidence whenever they constitute a link in the chain of circumstances which tend to connect the defendant with the commission of the particular burglary charged in the indictment." (Id., at p. 659.) The Winters court required evidence that the burglary at issue was actually committed by use of tools before admitting the tools as circumstantial evidence that the defendant was present at the scene. Similarly, in People v. Wilson (1965) 238 Cal.App.2d 447, 48 Cal.Rptr. 55, a portion of the tools found on defendant's person was offered to show that the defendant committed the burglary. The court found the tools admissible on this issue if they were "reasonably adapted" to accomplishing the illegal entry. (Id., at p. 463, 48 Cal.Rptr. 55.)

Other cases cited by appellant involve convictions of possession of burglary tools under statutes of other states which proscribe such possession. These cases are not applicable here, as they involve possession of common tools without evidence of the statutory element of intent to use them in a burglary. (Gossett v. State (1967) 242 Ark. 593, 414 S.W.2d 631, 632 [mere possession of common tools insufficient to support conviction for possession of tool "commonly used for breaking"]; Diefenbach v. State (1944) 245 Wis. 468, 14 N.W.2d 908, 908-910 [possession of "simple tools," including screwdriver and hammer, not within statute proscribing possession of tools designed for " '... cutting ... or breaking open any building, room, vault, safe, or other depository....' "]; Burnette v. State (1983) 168 Ga.App. 578, 309 S.E.2d 875, 878 [possession of hammer, pliers, screwdrivers, hatchet, and chisel held not to be tools commonly used in commission of burglary absent evidence of intent to so use them]; State v. Morgan (1966) 268 N.C. 214, 150 S.E.2d 377, 381 [tools with common uses, not connected with actual burglary, are not implements of housebreaking per statute]; see also, Cook v. Superior Court (1970) 4 Cal.App.3d 822, 829, 84 Cal.Rptr. 664 [possession of "shims" without intent to use in burglary and, in absence of admissible evidence that any burglary occurred, insufficient to support conviction for possession of burglary tools].)

In assessing the relevance of a particular item of evidence, a trial court starts with the premise that relevant evidence is evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid.Code, § 210.) Here, the only disputed fact was whether appellant formed the intent to commit larceny or any felony when he entered Menefee's garage. ( § 459.) "The intention with which an act is committed is ordinarily a question of fact for the jury and may be...